Over the last few months, the federal Occupational Safety and Health Administration (OSHA) has continued to provide guidance addressing safety concerns in the workplace in response to the COVID-19 pandemic. In the last month alone, OSHA has released enforcement guidance to employers and agency officials as follows:
- Enforcement Guidance on Decontamination of Filtering Facepiece Respirators in Healthcare During the COVID-19 Pandemic. (April 24, 2020).
- Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the COVID-19 Pandemic. (April 16, 2020).
- Interim Enforcement Response Plan for COVID-19. (April 13, 2020).
- Enforcement Guidance for Recording Cases of COVID-19. (April 10, 2020).
- Expanded Temporary Enforcement Guidance on Respiratory Protection Fit-Testing for N95 Filtering Facepieces in All Industries During the COVID-19 Pandemic. (April 8, 2020).
- Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other Countries During the COVID-19 Pandemic. (April 3, 2020).
- Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the COVID-19 Pandemic. (April 3, 2020).
OSHA has also issued national news releases reminding employees and employers of OSHA’s whistleblower protections afforded under the Act. In addition, OSHA has issued industry-specific alerts to keep workers safe, including alerts concerning construction workers, manufacturing workers, package delivery workers and retail workers. Finally, OSHA has published a new poster focused on reducing workplace exposure to COVID-19.
This article provides a summary of OSHA’s most recent guidance concerning COVID-19 in the workplace.
ALERT ON OSHA’S PROHIBITION ON RETALIATION
On April 8, 2020, OSHA issued a national news release reminding employers that they cannot retaliate against workers reporting unsafe and unhealthy working conditions during the COVID-19 pandemic. OSHA reminds employers that retaliation can consist of terminations, demotions, denials of overtime or promotion, or reduced hours and/or pay. It also alerts employees to file a complaint with OSHA using the online whistleblower complaint form or toll-free number if they believe that their employer has retaliated against them for making safety complaints related to COVID-19.
NEW OSHA POSTER
On April 6, 2020, OSHA published a poster highlighting ten steps all workplaces can take to reduce the risk of COVID-19. This OSHA poster is not mandatory but is a helpful reminder for employers and employees alike of steps that can be taken to prevent infection.
EMPLOYER’S GOOD FAITH EFFORTS
Generally, OSHA’s standards and regulations require employers to conduct annual or recurring audits, reviews, training or assessments. Recognizing the difficulty of absolute compliance with certain standards during the COVID-19 pandemic, on April 17, 2020, OSHA issued temporary guidance giving inspectors discretion in enforcement where an employer has not complied with these annual or recurring requirements and instructs investigators to evaluate if the employer:
- Explored all options to comply with applicable standards (e.g., use of virtual training or remote communication strategies);
- Implemented interim alternative protections, such as engineering or administrative controls; and
- Rescheduled required annual activity as soon as possible.
Where employers are unable to comply with OSHA requirements because of business closure due to government order, the employer should make efforts to comply as soon as possible following the reopening of the workplace.
OSHA’S RECORDKEEPING REQUIREMENTS
OSHA requires employers to report occupational diseases when they are work-related and when the case involves medical treatment, at least one day away from work or one day of work restrictions. Recognizing the difficulty for employers to determine whether an employee’s COVID-19 infection is work-related, on April 10, 2020, OSHA released guidance relaxing the recording requirements for COVID-19 cases against certain employers. Readers can find an article on this guidance on Butler Snow’s COVID-19 Hub.
INTERIM ENFORCEMENT RESPONSE PLAN
On April 13, 2020, OSHA released an Interim Enforcement Response Plan for Area OSHA Directors and their investigators on how to handle inspections, referrals, severe illness reports, and complaints due to COVID-19. OSHA indicates that in the initial months of the pandemic, it has received complaints about lack of personal protective equipment and lack of training on appropriate standards, as well as possible COVID-19 illnesses in the workplace. Readers can find an article on steps an employer should take when responding to an employee’s COVID-19 diagnosis on Butler Snow’s COVID-19 Hub.
The response plan provides a roadmap for the agency’s officials to follow when considering opening and conducting COVID-19-related investigations and gives employers insight on how OSHA will handle enforcement during the pandemic. OSHA is prioritizing fatalities, imminent danger situations, and “very high” and “high” risk exposure categories outlined in previous OSHA guidance on preparing workplaces for COVID-19. On-site inspections will be uncommon as the guidance requires approval of OSHA Regional Directors. OSHA instructed its investigators to maximize the use of electronic means of communication.
The response plan indicates that OSHA will generally not conduct an inspection for “medium” or “low” risk exposure employers. OSHA recommends that, in most cases, investigators should process complaints from non-healthcare and non-emergency response establishments using informal complaint and referral procedures. Therefore, for COVID-19 related complaints, it appears that OSHA will only conduct on-site inspections for fatalities and imminent danger exposures.
The plan sets out the procedure and protections OSHA investigators should take in conducting an on-site inspection, including appropriate personal protective equipment donning at least “goggles, disposable gloves, and disposable gowns or coveralls of appropriate size,” and “a fit-tested half-mask elastomeric respirator with at least an N95 filter,” which the employer is not required to provide.
The plan outlines the process for the opening conference, interviews and documents investigators should request. OSHA instructs investigators to practice social distancing during on-site inspections, including while conducting interviews with employees. While the plan is designed to apply to all OSHA inspections related to COVID-19, the majority of the plan focuses almost exclusively on inspections in a healthcare setting.
The plan indicates that all proposed citations for OSHA violations “shall be reviewed” with the Regional Administrator and the National office prior to issuance. Significantly, the plan directs investigators to consult current CDC guidance in assessing potential workplace hazards and to evaluate the adequacy of an employer’s protective measures for workers. Thus, employers should be mindful to consider the latest CDC guidance in putting protections in place to maintain a safe workplace during the pandemic.
OSHA GUIDANCE FOR ENFORCING RESPIRATORY PROTECTION STANDARD
OSHA requires that employers provide respirator equipment to employees when such equipment is necessary to protect their health. It also requires employers to establish and maintain a protection program for the respiratory equipment. In response to the pandemic and limited availability of N95 respirators, OSHA has issued multiple temporary enforcement guidance for the respiratory protection standard during the COVID-19 pandemic.
Most recently, on April 24, 2020, OSHA issued additional interim enforcement guidance on reusing disposable N95 filtering face piece respirators that have been decontaminated. The guidance identifies methods that offer promise for decontaminating respirators and those that are not considered acceptable. OSHA instructs employers to investigate the effectiveness of the decontamination method used for the specific filtering facepiece respirator model. Employers should be prepared to demonstrate the effectiveness of any decontamination method used against the likely contaminants of concern and that the decontamination method used does not produce additional safety hazards.
On April 3, 2020, OSHA issued two enforcement guidance memos regarding use of respiratory equipment. OSHA’s first enforcement guidance for respiratory protection permits enforcement discretion for extended use and reuse of respirators and use of respirators after the manufacturer’s expiration date under certain specific circumstances. Likewise, the second memorandum released April 3rd, provides similar guidance on the use of respiratory protection equipment certified under the standards of other countries or jurisdictions during the COVID-19 pandemic, if the methods set forth in the first memoranda are unavailable. Both memoranda provide that OSHA will, on a case-by-case basis, exercise enforcement discretion in issuing citations under the respiratory protection provisions where:
- The employer has made a good faith effort to obtain other alternative respirators appropriate to protect workers;
- The employer has monitored their supply of N95s and prioritized their use according to CDC guidance;
- The employer provided surgical masks and eye protection (e.g., face shields, goggles) as an interim measure to protect against splashes and large droplets; and
- Other feasible measures were implemented to protect employees.
Both memoranda apply to both healthcare personnel exposed to actual and potential COVID-19 patients, as well as workers exposed to other respiratory hazards due to the shortage of respirators resulting from the COVID-19 pandemic.
Last month, on March 14, 2020, OSHA released temporary enforcement guidance providing enforcement discretion for investigators evaluating a healthcare employer’s compliance efforts with the fit-testing requirements for OSHA’s respiratory protection standards (29 C.F.R. § 1910.134). OSHA explains that due to the shortage of N95 filtering facepiece respirators, OSHA would not require the annual fit test, which can damage or destroy the N95 respirator. The guidance directs inspectors to excuse noncompliance with annual fit testing where the healthcare employer has made good-faith efforts to comply with the annual fit-test standards and meets other specific circumstances.
OSHA expanded its enforcement guidance for annual fit tests to all workplaces where there is required use of respirators in its April 8, 2020 enforcement guidance. According to this latest guidance, OSHA investigators “will exercise enforcement discretion concerning the annual fit-testing requirements, as long as employers have made good-faith efforts to comply with the requirements of the respiratory protection standard and to follow the steps outlined in the March 14, 2020 memorandum.”
These enforcement guidance memoranda recognize the practical difficulties of all industries that require employers to provide N95 filtering facepiece respirators and offers some guidelines for employers to continue to operate during the pandemic.
CONCLUSION
The COVID-19 pandemic raises significant and changing workplace health and safety issues for employers. It is important for employers to assess what policies and procedures it has implemented to address safety issues related to COVID-19 and be informed of any new recommendations by health officials. Employers should carefully assess how OSHA, as well as any state OSHA agencies are viewing worker safety during the COVID-19 pandemic.
