Friday, March 13, 2020 is often viewed as the day America began to feel the impact of COVID-19. The following week, businesses throughout the country either transitioned to remote work or had to reckon with how to operate in a different manner while trying to protect workers from exposure to the virus. Since then, the Occupational Safety and Health Administration (OSHA) has consistently resisted calls to adopt new standards that directly address the pandemic, and instead has issued guidance on enforcement discretion in relation to COVID-19. OSHA has chosen to rely on existing standards and apply them to COVID-19. All the while, the COVID-19 pandemic has resulted in an increased number of worker complaints and a delay in closing investigations as OSHA has attempted to clarify just how the standards that existed before the pandemic are to be applied to COVID-19-related risks and exposures in the workplace.
The following is a brief summary of OSHA’s response to COVID-19 to date and where enforcement measures currently stand.
March – Initial guidance
In March, OSHA’s initial response to the pandemic involved the release of guidance providing recommendations to employers on how to plan for the impact of COVID-19 on their businesses, workers, customers, and the public. The primary recommendation was for employers to develop an infectious disease preparedness and response plan or to update existing plans. Such plans must consider occupational exposure, non-occupational risk factors, individual risk factors of workers, and controls necessary to address the identified risks. OSHA also recommended that such plans include basic hygiene and infection-control practices, policies for identifying and isolating sick employees, and the implementation of flexible policies to accommodate sick employees and their family members.
OSHA’s March guidance also established an Occupational Risk Pyramid, which broke down the risk of exposure in the workplace. High- and very high-risk groups were those likely to be exposed to known or suspected sources of COVID-19, whereas the medium-risk group included individuals whose jobs require frequent in-person contact with people who may be infected. Low-risk jobs were those that did not require in-person contact with the public, co-workers, or people known or suspected to be infected. For each risk group OSHA provided guidance to protect employees and the public.
April – COVID-19 may be recordable
In April, OSHA confirmed that COVID-19 could be a recordable work-related illness requiring documentation in certain circumstances. OSHA outlined three factors to consider when deciding whether to document an illness: 1) the case is a confirmed case of COVID-19 per Centers for Disease Control and Prevention (CDC) standards; 2) the case is work-related as defined in 29 CFR 1904.5; and 3) the case involves one or more of the general recording criteria outlined in 29 CFR 1904.7.
OSHA issued guidance stating that it would “exercise enforcement discretion” regarding the annual fit-testing requirements for respirators, provided employers took specific measures to inform employees and supply them with adequate respirators. OSHA also issued guidance setting out how it would exercise enforcement discretion when employers demonstrate good-faith efforts to comply with standards that require annual or recurring audits, reviews, training, or assessments.
May – Updates on enforcement
As many areas of the country began to re-open in May, OSHA updated its interim guidance on its enforcement response plan and on enforcement for recording COVID-19 cases. The updated interim enforcement guidance stated that OSHA would focus its enforcement efforts on higher- risk workplaces and workplaces with high numbers of complaints or known cases of COVID-19. OSHA prioritized inspections of high-risk workplaces that had complaints of unprotected COVID-19 exposure and fatalities and imminent danger exposures.
The revised enforcement guidance for recording cases of COVID-19 reiterated the three factors from the April guidance, but clarified what OSHA considered to be “work-related.” Going forward, OSHA would consider the reasonableness of an employer’s investigation, the evidence available to the employer, and the evidence that COVID-19 was contracted at the workplace.
The AFL-CIO also sued OSHA in May, demanding that the agency create an emergency temporary standard to address COVID-19. The lawsuit was dismissed in June and OSHA continued to resist issuing a specific standard.
June – FAQs on face coverings
In June, OSHA provided guidance in the form of Frequently Asked Questions (FAQs) on face coverings. The FAQs described the differences between cloth face coverings, surgical masks, and respirators, and clarified that cloth face coverings were not considered personal protective equipment (PPE) and would not protect someone from airborne diseases. However, OSHA recommended that employers encourage workers to wear face coverings at work based on CDC recommendations. Cloth face coverings could be used in appropriate environments to conserve PPE for health care settings. OSHA still does not consider cloth face coverings to be PPE, despite the CDC statements that some cloth face coverings have the potential to provide protective benefits.
The FAQs also stated that the General Duty Clause found in the OSHA Act of 1970 requires employers to provide a workplace that is free from recognized hazards. To this end, providing face coverings or PPE did not negate the recommendation for social distancing and other measures, such as engineering and administrative controls.
Since the summer
Since June, OSHA has focused its pandemic efforts on providing guidance to specific industries, including manufacturing, construction, solid waste and wastewater management, and laboratories. OSHA also has issued and regularly updated COVID-19 FAQs, as well as guidance documents on specific issues such as cloth face coverings, ventilation in the workplace, and frequently cited standards related to COVID-19 inspections.
OSHA continues to rely upon existing standards to support its enforcement and compliance approach to COVID-19. Thus far, the most frequently implicated standards include those surrounding respiratory protection, recording and reporting occupation injuries and illnesses, personal protective equipment, and the General Duty Clause. Unless a new administration follows the lead of several states and determines that COVID-19-specific OSHA standards are required, further guidance and activity likely will be focused on OSHA’s interpretation of existing standards.
COVID-19 enforcement trends
As of the beginning of December, OSHA has received more than 11,118 complaints related to COVID-19 and closed at least 10,626 of those cases. OSHA has opened 1,291 investigations related to COVID-19 and, thus far, issued 255 citations resulting in more than $3,000,000 in proposed penalties.
In August, OSHA’s Office of Inspector General (OIG) reported that OSHA received 30 percent more whistleblower complaints from February 1 to May 31 over the same period last year, with 39 percent of the total complaints being related to COVID-19. OIG also found that the increased caseload has resulted in a notable increase in the time required to close an investigation. The OIG’s report included various recommendations for how OSHA could increase efficiency, some of which already have been implemented.
With the potential of widely available vaccines on the horizon and a new administration set to take office, 2021 is likely to bring changes and new challenges for employers looking to maintain OSHA compliance, protect their employees, and avoid unwanted investigations and enforcement. For the foreseeable future, employers will need to remain vigilant and continue to look to OSHA for further guidance.