New guidance has emerged effective May 26th related to how OSHA plans to investigate COVID-19 related hazards in the workplace. The new guidance will supersede OSHA’s previous Interim Response Plan from earlier this spring.
As the top priority for OSHA still remains to eliminate COVID-19 exposures and transmissions in the workplace, new guidance is provided and will begin to be enforced as states and businesses begin to reopen. There are two general frameworks for application within these guidelines based on the geographic areas:
- In geographic areas where community spread of COVID-19 has significantly decreased, OSHA will return to adhering to its typical inspection planning procedures, as outlined in its Field Operations Manual (FOM), when prioritizing reported events for inspections, except that:
- OSHA will continue to prioritize COVID-19 cases;
- OSHA will utilize non-formal phone/fax investigation or Rapid Response Investigation (RRI) in circumstances where OSHA has historically performed such inspections (e.g., to address formal complaints) when necessary to assure effective and efficient use of resources to address COVID-19 related events.
- In geographic areas experiencing sustained elevated community transmission or a resurgence in community transmission of COVID-19, OSHA will exercise discretion, considering available resources, to:
- Continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection. OSHA will be particularly attentive to on-site investigations for high-risk workplaces (i.e., workplaces in the medical community where there is greater risk for exposure to known or suspected cases of COVID-19 due to “aerosol-generating procedures”) and workplaces with high numbers of complaints or known COVID-19 cases.
Identifying Workplace Risk Levels
The Updated Plan continues to bracket COVID-19 risk exposure into three categories: (1) high/very high exposure; (2) medium exposure; and (3) low exposure.
- High/very high exposure risk jobs center on the medical community where employees interact with people known to have or suspected of having COVID-19, especially those employees involved in treating patients who are receiving aerosol-generating procedures.
- Medium exposure risk jobs include those with frequent and/or close contact with others, i.e., employees whose jobs require them to come within six feet of others.
- Low exposure risk jobs include those workers that “have minimal occupational contact with the public and other coworkers.”
The Updated Plan provides detailed procedures and guidance for how OSHA should handle COVID-19-related complaints, inspections, and citations during the COVID-19 pandemic.
Complaint Processing
According to OSHA, the agency received nearly 1,000 COVID-19-related complaints in one week and anticipates continuing to receive these complaints as more workplaces reopen. OSHA will handle these complaints according to the geographic areas and COVID-19 cases:
In geographic areas where community spread of COVID-19 has significantly decreased and complaints or referrals are received regarding medium- or low-risk workplaces, OSHA will follow the usual procedures outlined in its FOM, with minor modifications. Fatalities, imminent danger reports, and life-critical events will likely result in on-site inspections. Less serious COVID-19-related hazards will likely be handled as a written inquiry asking the employer to provide a written response.
In those high-risk workplaces or geographic areas experiencing a sustained, elevated or resurgence in community transmission, OSHA will adhere to modified investigatory procedures, including the following:
- Prioritize inspections of fatalities and imminent danger exposures related to COVID-19. Area Offices will continue to prioritize resources and consider all relevant factors in determining whether to perform a non-formal, remote investigation in lieu of an on-site inspection, such as in cases where the complaint alleges inadequate PPE due to supply issues.
- Where resources are insufficient to allow an on-site inspection of a fatality or imminent danger event, inspections will be initiated remotely with an expectation that an on-site component will be performed if/when resources become available. Where limited resources will not allow for an on-site or remote inspection, OSHA will use a remote RRI.
- COVID-19 complaints involving medium- or low-risk exposure tasks (e.g., non-medically related activities) are not likely to result in an on-site inspection where a non-formal inquiry can address the alleged hazards. But, inadequate responses to an inquiry can lead to an on-site inspection.
- In most cases, OSHA will continue to use RRI to review employer-reported hospitalizations.
- OSHA will also continue to refer cases to other government agencies based on facts it learns while processing complaints and conducting investigations.
Inspections, Standards, and Citations
The Inspection Process portion of OSHA’s Updated Plan focuses on healthcare facilities. The Updated Plan supplements the FOM by identifying individuals to interview and documents to review. Employers should expect to be asked for their written pandemic plan, infection control plan, protocols for PPE use, records of employee infections and exposures, respiratory protection program and any modified respirator policies, and training records related to COVID-19 hazards.
OSHA continues to remind employers that they should consult the U.S. Centers for Disease Control and Prevention (CDC) guidance in assessing potential workplace hazards and evaluating the adequacy of their protective measures for workers. Where an employer’s protective measures are not as protective as those recommended by the CDC, the Updated Plan instructs Employers should regularly check updated CDC guidelines to ensure they are meeting or exceeding those guidelines in protecting their employees.
Next Steps
Employers should review the Updated Plan carefully to determine what procedures to implement to ensure OSHA compliance, and regularly consult counsel in the event they receive a COVID-19-related OSHA complaint.
If your business requires updated safety procedures, implementation of a safety training program or you would like to create an Accident Prevention Program, as outlined in OSHA or WISHA compliance regulations, please contact JB Consulting Systems via email.