OSHA Announces its COVID-19 Enforcement Priority Initiative: Are You Ready?
April 17, 2020
By: Thomas M. Cunningham
While many Iowans are teleworking, a substantial number of employees of essential industries – particularly in the health care, emergency responder, manufacturing, and warehouse/distribution/supply chain industries – are on-site in the workplace on a daily basis. The Iowa Occupational Safety and Health Administration (IOSHA) has been enforcing workplace safety standards throughout the COVID-19 outbreak. Regardless of the timing for remotely working Iowans to begin the migration back to their workplaces, employers should now re-examine their workplace safety protocols as they navigate the pandemic.
On April 13, 2020, Federal OSHA issued its Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19). Although technically an internal guide for Federal OSHA field offices and inspectors investigating COVID-19 related complaints, publication of the Enforcement Response Plan should serve as public notice to employers of OSHA’s enforcement priorities concerning COVID-19 related workplace safety issues. Moreover, the Enforcement Response Plan provides a roadmap to ensure workplace safety for both employers whose essential businesses currently are operating on site as well as for employers who ultimately will have to integrate a teleworking workforce back into the workplace, without incurring substantial fines and penalties. Iowa OSHA, which operates a federally-approved state plan, will follow the federal practice. Accordingly, Iowa employers should react now to the guidance provided in OSHA’s COVID-19 inspection priorities.
Three days before the issuance of the Enforcement Response Plan, OSHA issued guidance clarifying employers’ record-keeping requirements for COVID-19 cases in the workplace. As a result of the exponential increase in community spread of COVID-19, OSHA now has announced that until it notifies employers otherwise, it will not enforce its recording requirements to require employers (except those in the health care industry, emergency response organizations, or correctional institutions) to make work-relatedness determinations of COVID-19 cases except where objective evidence of work-relatedness exists, and that evidence is “reasonably available” to the employer. The purpose of this ease on record keeping for most employers is clear: OSHA wants employers to spend their time and resources on taking steps to provide a safe workplace, and not in investigating whether a particular COVID-19 case is work-related for recording purposes. For a more detailed description of the revised record-keeping requirement, see the companion article.
Enforcement Response Plan
While focusing on general industry as a whole, OSHA’s Enforcement Response Plan clearly shows it is using a risk-based approach to assess and prioritize its fieldwork, with a priority placed on health care and emergency response employers. In fact, the Enforcement Response Plan directs that any complaints outside of these industries (and with medium to lower exposure risk) will not normally result in an on-site inspection, but will be processed with lower priority, non-formal procedures. If a complaint is received from outside one of the high-priority industries, OSHA will be forwarding complaint information deemed appropriate to other federal (and in Iowa presumably state) agencies with concurrent interest in dealing with COVID-19. In other words, OSHA has warned employers that a complaint in any workplace could be addressed by multiple enforcement agencies (e.g., the USDA, FDA, Iowa Food and Consumer Safety Bureau).
That being said, anecdotal reports suggest most COVID-19-related employee complaints to Iowa OSHA have come from the healthcare, emergency responder, manufacturing, and warehouse/distribution/supply chain industries. Thus, it is entirely possible that Iowa’s implementation of the Enforcement Response Plan could expand the enforcement priority to include these latter two listed industries if its resources permit.
The Enforcement Response Plan outlines the primary areas on which OSHA inspectors should focus during any COVID-19 related inspection:
- Whether the employer has a written Infectious Disease Preparedness and Response Plan as recommended by the CDC, and if so, whether the plan has been updated to reflect issues specific to COVID-19;
- The employer’s written hazard assessment procedures and personal protective equipment (PPE) protocols, as well as employee training records, especially related to dealing with and protecting against COVID-19;
- Written respiratory protection programs and/or modified respirator policies, including efforts made by the employer to obtain and provide adequate PPE and any PPE shortages;
- Determine whether the employer has considered and/or implemented a system and hierarchy of controls for worker protection. Examples given are engineering controls, such as the installation of high-efficiency air filters, increased ventilation, and physical barriers; Administrative and workplace practices controls such as accommodating employees through social distancing and telework if possible; repeated instruction and emphasis on respiratory etiquette and hand hygiene; routine environmental cleaning; and discontinuing nonessential travel;
- Reviewing medical records relating to worker exposure incidents, OSHA-required recordkeeping as discussed above, and any COVID-19 related exposures or infections; and
- In regard to healthcare employers especially, whether the employer has appropriate isolation rooms, air pressure monitoring systems, periodic testing procedures, proper transfer procedures, and proper placements of confirmed and suspected COVID-19 patients.
The Enforcement Response Plan identifies the following standards as the primary ones that OSHA will consider during its inspections:
- The General Duty Clause of the OSH Act; (in Iowa, Iowa Code section 88.4)
- PPE, including eye, face and respiratory protection (29 C.F.R. §§ 1910.132, 1910.133 and 1910.134)
- Sanitation (29 C.F.R. §1910.141)
- Specifications for accident prevention signs and tags (29 C.F.R. §1910.145)
- Access to employee exposure and medical records (29 C.F. R. §1910.1020)
- Recording and reporting of occupational injuries and illness (29 C.F.R. Part 1904).
Anecdotal evidence suggests Iowa OSHA was following a similar protocol before Federal OSHA published its Enforcement Response Plan. Reports have been received that Iowa OSHA has been conducting inspections of businesses and interviewing employees concerning employer safety precautions for COVID-19. Employee COVID-19 complaints primarily have alleged shortages of adequate PPE and alleged insufficient written infection controls and protocols.
Although the immediate OSHA workplace safety enforcement focus is on certain industries, as the migration back to workplaces begins for remotely working workforces, those priorities are likely to expand. The time is now for employers with on-site employees to re-examine their safety measures. Moreover, it is not too early for employers with a significant number of teleworking employees to prepare to meet their obligations to provide a safe workplace.
Please contact your Nyemaster Goode attorney for any questions regarding OSHA’s COVID-19 workplace safety enforcement guidance or for assistance with labor and employment issues in general.