OSHA’s New COVID-19 Inspection Plan: What Employers Should Expect

On April 13, 2020, the federal Occupational Safety and Health Administration (OSHA) issued its Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), which provides a blueprint for the agency’s Area Directors and inspectors to follow when considering opening and conducting a COVID-19-related inspection. The plan gives employers a glimpse into what to expect from OSHA during the pandemic.

Priorities

OSHA is prioritizing fatalities, imminent danger situations, and “very high” and “high” risk exposure categories detailed in previous OSHA guidance for inspections and investigations. The agency does not, however, define or explain what, exactly, is an “imminent danger” situation in a pandemic. For employers within the “medium” or “low” risk exposure categories, OSHA will generally not conduct an inspection, except perhaps in egregious situations. Most employers in the medium or low risk categories (especially those with “billing clerks,” the lone example cited by OSHA) can expect to receive complaint letters, requests for a rapid response investigation (RRI), or a hazard alert letter.

COVID-19 inspections will be treated as “novel cases.” On-site inspections will be uncommon and require clearance with OSHA Regional Directors. OSHA instructed its Area Directors to “maximize the use of electronic means of communication (remote video surveillance, phone interviews, email correspondences, facsimile and email transmittals of documents, video conferences, etc.).”

Inspections: What to Expect

For a field inspection, compliance safety and health officers (CSHOs) are expected to wear appropriate personal protective equipment (PPE), which includes, at a minimum, “goggles, disposable gloves, and disposable gowns or coveralls of appropriate size,” and “a fit-tested half-mask elastomeric respirator with at least an N95 filter.” CSHOs must also adhere to “any facility-imposed PPE requirements” during the inspection. The employer is not required to provide such PPE to the CSHO.

CSHOs will conduct an opening conference in a designated, uncontaminated administrative area, or by telephone, if necessary. “As appropriate to the setting,” OSHA notes, “CSHOs should ask to speak to the infection control director, safety director, and/or the health professional responsible for occupational health hazard control.” Private interviews with affected employees should be conducted in uncontaminated areas or, ideally, over the telephone. At all times during an on-site inspection, “CSHOs should practice social distancing (such as maintaining at least 6 feet of distance), if possible, while conducting interviews with employees.”

Document Requests

Inspectors will request to review the following, as appropriate:

• Respiratory protection programs;
• “Written pandemic plans” as recommended by the Centers for Disease Control and Prevention (CDC);
• Lab procedures for handling testing specimens;
• Medical records related to worker exposure incident(s);
• OSHA recordkeeping logs;
• “[D]ocumentation of provisions made by the employer to obtain and provide appropriate and adequate supplies of PPE”; and
• Training records “related to COVID-19 exposure prevention or in preparation for a pandemic.”

The reference to “written pandemic plans” cites to a CDC Comprehensive Hospital Preparedness Checklist for COVID-19.

The enforcement plan briefly discusses protocols to follow when conducting “testing procedures of isolation rooms,” but at the same time asks CSHOs to “take care to avoid interference with the provision of ongoing medical services.”

Citations

All proposed citations must be reviewed and approved by the Directorate of Enforcement Program in the national office prior to issuance. OSHA directs CSHOs to consider employer compliance with the following provisions:

• 29 C.F.R. § 1904, Recording and Reporting Occupational Injuries and Illness;
• 29 C.F.R. § 1910.132, General Requirements – Personal Protective Equipment;
• 29 C.F.R. § 1910.133, Eye and Face Protection;
• 29 C.F.R. § 1910.134, Respiratory Protection;
• 29 C.F.R. § 1910.141, Sanitation;
• 29 C.F.R. § 1910.145, Specification for Accident Prevention Signs and Tags;
• 29 C.F.R. § 1910.1020, Access to Employee Exposure and Medical Records; and
• Section 5(a)(1), General Duty Clause of the Occupational Safety and Health Act (OSH Act).

Key Takeaways

• The enforcement plan does not replace or supersede any previous COVID-19 guidance the agency has issued to employers. Annual fit testing requirements are still suspended for healthcare and all other industries, and OSHA is still allowing employers to utilize respirators approved in certain other countries.
• While OSHA asks CSHOs to “avoid interference with the provision of ongoing medical services,” any OSHA inspection of a hospital or healthcare setting in this current environment will be disruptive by its very nature. OSHA would be pulling administrators, doctors, nurses, and technicians off the front lines of the COVID-19 pandemic for purposes of responding to an inspection, at a time when hospitals at capacity need all hands on deck to treat sick patients. Such inspections run precariously close to the OSH Act’s prohibition against inspections unduly disrupting the workplace under Section 8(a).
• The enforcement plan is designed to apply to all OSHA inspections related to COVID-19, but the majority of the plan focuses almost exclusively on inspections in a healthcare setting. With little training and guidance from OSHA, it is not difficult to envision CSHOs demanding non-healthcare employers to turn over written pandemic preparedness plans. While current OSHA guidance recommends that employers implement infectious disease preparedness and response plans, there is no requirement to create written OSHA cannot legally require a written plan unless the requirement has the approval of the United States Office of Management and Budget (OMB) under the Paperwork Reduction Act.
• OSHA’s enforcement plan left “high-volume retail settings” and “high-population density work environments” high and dry. The agency suggests no alternatives to respirators. Even for those employers that are able to obtain respirators, the agency expects them to somehow get employees trained, fit-tested, and to a physician for medical evaluation in the blink of an eye. With the growing number of COVID-19 cases, retail employers increasingly highlight the infeasibility of compliance with the respiratory protection standard (29 C.F.R. 1910.134) during the pandemic, to no avail.
• It is troubling that OSHA is considering CDC recommendations as a basis for citations under the General Duty Clause. CDC’s recommendations were not subject to feedback from public stakeholders, as one can expect during formal notice-and-comment rulemaking. The news is replete with articles regarding the epidemiological debates about the effectiveness of face coverings. Nevertheless, the CDC issued a recommendation that the general public (which includes employees) wear face coverings in public settings. Court precedent has also made clear that OSHA cannot rely on advisory guidance as the basis for a General Duty Clause violation. If the agency wants to make such a recommendation mandatory, it must subject the recommendation to notice-and-comment rulemaking.
• Aggressive area offices and investigators may likely persist in conducting in-person interviews. Many inspectors prefer in-person interviews, and often ask interviewees to sign or endorse the inspector’s notes of the interview.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.