Legal Updates
OSHA Enforcement During The COVID-19 Pandemic: What Employers Need To Know
Over the past several weeks, the federal Occupational Safety and Health Administration (“OSHA”) has released a number of publications intended to provide guidance to employers on health and safety matters related to the COVID-19 public health crisis.
In particular, these recent releases include recommendations on the use of face coverings in workplaces, an outline of how OSHA plans to address COVID-19-related complaints and illness reports, and guidance for employers in keeping records of work-related COVID-19 cases.
Guidance On Face Coverings
On June 10, 2020, OSHA issued guidance, in the form of a list of frequently asked questions (“FAQs”) and answers, relating to the use of cloth face coverings in the workplace during the COVID-19 pandemic.
The FAQs clarify that since cloth face coverings are not considered personal protective equipment (“PPE”), OSHA’s PPE standards do not require employers to provide face coverings to employees.
However, consistent with recommendations by the Centers for Disease Control and Prevention (“CDC”), OSHA suggests that employers encourage employees to wear face coverings in the workplace as a means of preventing the transmission of the COVID-19 virus. OSHA goes on to note that employers may allow employees to use cloth face coverings in the workplace or provide employees with PPE, such as face shields and/or surgical masks, if cloth face coverings are not appropriate for the work environment or specific job tasks.
OSHA’s FAQs also remind employers that social distancing measures in the workplace remain vital, even where employees use cloth masks or other face coverings.
Enforcement Plan
On May 19, 2020, OSHA issued its Updated Interim Enforcement Plan for Coronavirus Disease 2019 (COVID-19) (the “Enforcement Plan”). The Enforcement Plan includes instructions and guidance for OSHA Area Offices on addressing COVID-19-related complaints, referrals, and severe illness reports.
In the Enforcement Plan, OSHA states that it aims to minimize COVID-19 hazards and promote safe and healthy working conditions in accordance with the following framework:
• In geographic areas where the spread of COVID-19 has significantly decreased, OSHA will generally follow its normal workplace inspection planning and prioritization policies. However, OSHA will continue to focus on COVID-19 cases, including through informal phone/fax investigations or rapid response investigations, where appropriate.
• In geographic areas experiencing sustained or resurgent levels of COVID-19 infection, OSHA Area Directors will continue prioritizing COVID-19 issues, with particular attention paid to on high-risk workplaces, such as hospitals and other healthcare institutions treating patients with COVID-19, as well as workplaces with high numbers of COVID-19-related complaints or known cases. If on-site inspections are not immediately feasible, such inspections may be conducted remotely until the necessary resources become available.
The Enforcement Plan also references OSHA’s Rapid Response Investigations Enforcement Procedures (“RRI Procedures”) which outline the reporting requirements for employers regarding work-related fatalities, inpatient hospitalizations, amputations, and losses of an eye. In accordance with the RRI Procedures, if an employee dies or is hospitalized as a result of a confirmed, work-related case of COVID-19, the employer must ensure that a report is made to OSHA within the required timeframe.
Recording Guidance
Also last month, OSHA issued its Revised Enforcement Guidance for Recording Cases of 2019 Coronavirus Disease (COVID-19) on OSHA Injury and Illness Logs (“Recording Guidance”). The Recording Guidance provides updated guidance for employers on OSHA’s recordkeeping requirements in the COVID-19 context.
As the Recording Guidance indicates, since COVID-19 is a recordable illness, an employer is responsible for recording a case of COVID-19 if:
• The case is a confirmed case of COVID-19, as defined by the CDC;
• The case is work-related as defined by 29 CFR § 1904.5 (i.e., resulting from events or exposure occurring in the work environment); and
• The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7 (e.g., medical treatment, days away from work).
Given the nature of COVID-19 and the ubiquity of its spread through many communities, which made it difficult for employers to determine whether a case was work-related, OSHA had been exercising discretion in enforcing these recording requirements. Now, however, as transmission of the virus and prevention of COVID-19 infection have become better understood, employers may be better able to identify instances in which an employee's COVID-19 illness is likely work-related – for example, if the employee’s job duties involve frequent, close contact with the general public in a locality with a high rate of COVID-19 infection and there is no other obvious explanation. Therefore, employers should ensure that they are keeping accurate records of cases of COVID-19 among their workforce and whether such cases appear to be work-related.
Takeaways For Employers
Employers should review these recent OSHA guidance documents and take any necessary steps to ensure that they are in compliance. These steps should include, in particular, ensuring that employees have any necessary PPE, and training managers and administrators on OSHA recording and reporting requirements in the COVID-19 context.
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If you have questions on any of the issues raised by OSHA’s recent guidance, or on any other workplace health or safety matters, please feel free to reach out to one of our experienced employment attorneys.
