The Occupational Safety and Health Administration (OSHA) will ramp up in-person workplace inspections and enforcement of coronavirus-related guidance under newly revised policies, according to an announcement released on May 19, 2020.
OSHA’s Updated Interim Enforcement Response Plan comes as states and local economies across the U.S. begin to reopen non-essential businesses and public spaces.
The updated plan will replace previous interim guidance sent to OSHA area offices in April that relaxed many recordkeeping standards and enforcement activities, and serve as a guide for CSHOs tasked with investigating coronavirus-related hazards, complaints, and transmission.
New OSHA Enforcement Guidance May 2020: What You Need to Know
OSHA’s new enforcement guidance has two major components:
- Increased site inspections; and
- Revised reporting and recordkeeping requirements.
Increased Workplace Inspections
Under the updated Enforcement Response Plan, OSHA prioritizes the elimination of virus-related hazards through increased inspections. Officials will take one of two approaches in regard to inspections:
In geographic areas where community spread has significantly decreased, OSHA will follow normal procedures outlined in its FOM when prioritizing reported events for inspection.
However, the agency did announce it will:
- Continue to Prioritize COVID-19;
- Continue the use of non-formal phone / fax investigations or rapid response investigations as it has historically done (i.e. in response to formal complaints); and
- Utilize PPE for compliance officers (CSHOs) who perform inspections.
In areas experiencing a sustained increase or resurgence of community transmission, OSHA will prioritize COVID-19 deaths and imminent virus-related dangers for inspection. On-site inspection will also be prioritized for high-risk workplaces (i.e. hospitals, health care facilities), and workplaces with high numbers of COVID-19 cases or complaints. Additionally, the agency will:
- Initiate inspections remotely if resources are insufficient for in-person visits;
- Utilize rapid response investigation if limited resources prevent on-site or remote inspection;
- Develop a program to conduct monitoring inspections from a random sample of cases involving death or imminent dangers where resource limitations prevented inspection.
Reporting and Recordkeeping
OSHA’s new guidance also lays out best practices to ensure employers comply with their obligations for reporting and recordkeeping, which includes mandates that covered employers record certain injuries and illnesses on their OSHA 300 log.
Per OSHA, a COVID-19 case must be recorded if it:
- Is a confirmed COVID-19 case:
- Work-related; and
- Involves one or more of OSHA’s general recording criteria (i.e. results in death, time off work, limited work or transfer, medical care beyond first aid, or loss of consciousness).
Perhaps most importantly, OSHA has taken the position that employers must take reasonable steps to determine if employee COVID-19 cases are work-related and recordable. OSHA began enforcing COVID-19 record keeping requirements as of May 26 for all employers – not just those in high-risk industries.
Hendershot Cowart P.C.: OSHA Compliance Counsel
OSHA’s new guidance is a reminder that just as our understanding of the coronavirus evolves, so will our laws and regulations. Amid these unprecedented times, employers across all industries should remember the importance of implementing, refining, and ensuring consistent adherence to preventative measures that keep workers safe, and keep companies out of regulators’ crosshairs.
At Hendershot Cowart P.C., our OSHA law team continues to track evolving COVID-19 guidance and actively work with employers who require proactive compliance counsel or citation defense. Call or contact us online to speak with an attorney.