On April 13, the U. S. Department of Labor’s Occupational Safety and Health Administration issued an interim enforcement response plan with instructions and guidance to OSHA Area Offices and compliance safety and health officers for handling coronavirus-related complaints, referrals and severe illness reports. The vast majority of OSHA’s interim enforcement response plan focuses on how to conduct inspections in the health care industry as opposed to general industry or construction.

According to an analysis written by ABC general counsel Littler Mendelson P.C., “the plan expressly modifies portions of the Field Operations Manual that detail how OSHA will process and handle investigations. The plan makes clear that OSHA will conduct significantly fewer on-site investigations, handling most through the informal process of calling employers followed by faxing or emailing an informal complaint. In line with existing procedures for nonformal complaints, if an employer provides a sufficient response, OSHA will close the complaint and not proceed to an on-site inspection…Even if an on-site investigation does occur, the plan directs that Area Offices ‘maximize the use of electronic means of communication (remote video surveillance, phone interviews, email correspondence, facsimile and email transmittals of documents, video conferences, etc.).’  Additionally, OSHA will prioritize enforcement related to healthcare and emergency response sectors, with the plan providing significant detail on how compliance safety and health officers are to conduct those investigations.”

The Littler analysis further states, “Formal complaints alleging unprotected exposures to COVID-19 for workers with a high/very high risk of transmission—i.e., healthcare organizations and first responders—will get top CSHO priority for investigation along with the possibility of an on-site inspection.  All other complaints, whether formal or non-formal, ‘will not normally result in an on-site inspection’ and will be processed in the ordinary course, but with new procedures focused on minimizing in-person contacts. This approach does not mean, however, that OSHA will not take all complaints seriously and continue to conduct on-site inspections.”

Additional highlights of the agency’s guidance include the following:

• OSHA should investigate complaints, referrals and employer-reported fatalities and hospitalizations to identify potentially hazardous occupational exposures and to ensure that employers take prompt actions to mitigate hazards and protect employees.
• In most cases, Area Offices should process complaints from nonhealthcare and nonemergency response establishments as "nonformal phone/fax," following the nonformal complaint and referral procedures in the Field Operations Manual, CPL 02-00-163, Sept. 13, 2019, at www.osha.gov/enforcement/directives/cpl-02-00-163;
• Prior to any inspection related to COVID-19, each area director should evaluate the risk level of exposure at the workplace, and prioritize his or her resources in coordination with his or her regional offices to determine if an on-site inspection is necessary;  
• Lower-exposure jobs are those that do not require contact with people known to be, or suspected of being, infected with COVID-19, nor frequent close contact with, i.e., within six feet of, the general public. Workers in this category have minimal occupational contact with the public and other coworkers.
• Employer-reported hospitalizations will be handled using the rapid response investigation in most cases; and
• The most current CDC guidance should be consulted in assessing potential workplace hazards and to evaluate the adequacy of an employer’s protective measures for workers. Where the protective measures implemented by an employer are not as protective as those recommended by the CDC, the CSHO should consider whether employees are exposed to a recognized hazard and whether there are feasible means to abate that hazard.

For additional OSHA resources, visit the agency’s coronavirus webpage.

This article is intended for informational purposes only and does not constitute legal advice or opinion.