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Recent Guidance from OSHA on Enforcement during the Coronavirus Outbreak

By Eric Michener

April 21, 2020

In recent days OSHA has continued to provide guidance to employers and OSHA’s own Area Offices on OSHA enforcement priorities during the COVID-19 outbreak.

On April 10, 2020, OSHA provided interim guidance that states that except for employers in the healthcare industry, emergency response organizations, and corrections institutions, employers will not be required to treat COVID-19 cases as recordable incidents for OSHA recordkeeping purposes unless there is objective evidence that a COVID-19 case may be work-related.  Even then, the evidence must have been reasonably available to the employer.  https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.  OSHA stated that the purpose of this enforcement policy was to “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.”

Apparently, in keeping with this goal, on April 13, 2020, OSHA released an Interim Enforcement Response Plan for COVID-19 that directs Area Offices to focus their investigations on high-risk businesses.  https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plan-coronavirus-disease-2019-covid-19. The memo directs Area Offices to process complaints from non-healthcare and non-emergency response establishments as non-formal phone/fax investigations where agents do not do an onsite inspection of the business.  Such investigations request information from the employer about the alleged problem and if the employer provides a satisfactory response, the investigation will not involve an onsite inspection.  Without an onsite inspection, the investigation cannot result in a citation as OSHA is prohibited from issuing a citation without having conducted an inspection or investigation of the workplace.

According to the memo, the non-formal phone/fax investigations are designed to expedite employers’ attention to alleged hazards.  Indeed, rather than focus on punitive measures, the memo directs agents to assist employers by directing them to publicly available guidance documents on protective measures that can be found at www.osha.gov/coronavirus.

On April 16, 2020, OSHA released yet another Enforcement Memorandum that provides employers with flexibility entitled, “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic.” In this memo, OSHA directs its Area Offices to assess an employer’s efforts to comply with OSHA standards that require annual or recurring audits, reviews, training or assessments.  If an employer has made good faith efforts to comply with applicable OSHA standards, the inspector “shall take such efforts into strong consideration in determining whether to issue a violation.”

An example of such a situation is listed in the appendix of the memo where it describes a Construction Crane Operator who needs to undergo a re-certification or re-licensing exam.  If the operator is unable to undergo re-certification or re-licensing due to travel restriction or social distancing protocols then OSHA will not cite the operator’s employer for allowing the operator to work with an expired certification, as long as the employer considered alternative options for compliance, implemented interim alternative protective measures, where possible, and can show good faith efforts to reschedule and complete the operator's recertification as soon as possible.

When an employer is unable to comply with OSHA-mandated training, audit, assessment, inspection, or testing requirements because local authorities required the workplace to close, the employer is required to demonstrate good faith efforts to meet the applicable standards as soon as possible after re-opening the workplace.  To ensure these efforts take place, OSHA will develop a program to conduct monitoring inspections from a randomized sampling where violations were noted but not cited.

Should you have any questions in regard to the content of this client alert, please do not hesitate to contact one of our attorneys.

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