On the front lines with Fisher Phillips
The Occupational Safety and Health Administration recently announced that OSHA area offices will begin to increase in-person inspections in some parts of the country as the agency released a revised response plan on how it will handle COVID-19-related complaints, referrals and severe illness reports. The previous COVID-19 enforcement guidance sent to the area offices in April 2020, which had relaxed recordkeeping standards and otherwise eased off typical enforcement activity, has been rescinded.
The revised response plan breaks OSHA’s enforcement guidance down into two approaches depending on current COVID-19 cases: (1) geographic areas where community spread of COVID-19 has significantly decreased; and (2) geographic areas experiencing either sustained elevated or a resurgence in COVID-19 cases.
Areas where COVID-19 cases have significantly decreased
• OSHA will continue to prioritize COVID-19 cases;
• OSHA will continue utilizing non-formal phone/fax investigations or rapid response investigations in circumstances where OSHA has historically performed such inspections (e.g., to address formal complaints); and
• Proper PPE will be used by OSHA’s compliance safety and health officers (CSHOs) when performing COVID-19-related inspections.
Areas experiencing a sustained elevated or resurgence in COVID-19 cases
In these areas, OSHA will continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection. High-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19, as well as workplaces with high numbers of complaints or known COVID-19 cases, will be prioritized for onsite inspections, under the following conditions:
• Inspections will be initiated remotely if resources are insufficient to allow for on-site inspections;
• Rapid response investigations will be used if neither on-site or remote inspections are possible; and
• OSHA will develop a program to conduct monitoring inspections from a randomized sampling of fatality or imminent danger cases where inspections were not conducted due to resource limitations.
OSHA will also continue utilizing non-formal phone/fax investigations or rapid response investigations in these areas if they can address the relevant hazard. OSHA will also ensure PPE is utilized by CSHOs when conducting on-site inspections.
Remember to Report
The guidance also reminds employers of their duty to report incidents resulting in a fatality, in-patient hospitalization, amputation, and loss of an eye that were the result of a work-related incident. Employers must report a fatality within eight hours after they learn of the fatality, and must report an in-patient hospitalization, an amputation, or a loss of an eye within twenty-four hours of learning of the incident. OSHA will make a decision as to whether to initiate an on-site inspection or rapid response investigation after such reports are received. For a detailed summary of the portion of the guidance related to recordkeeping, you can refer to our alert: OSHA Ramps Up Employers’ COVID-19 Recordkeeping Obligations.
This updated enforcement response plan provides guidance on the priorities of OSHA in dealing with COVID-19-related complaints and inspections as more states are taking steps to reopen their economies and workers are returning to their workplaces. Employers should pay close attention to the current trend of COVID-19 cases in their geographic area to assess how OSHA may respond to COVID-19 related complaints.