December 6, 2021

Volume XI, Number 340


December 03, 2021

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Be Prepared for OSHA’s COVID-19 Interim Enforcement Response Plan

On April 13, 2020, OSHA issued its Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19). Employers should pay close attention to this interim guidance because it includes important changes to enforcement guidelines and record-keeping requirements. High-risk employers in the medical and manufacturing sectors face especially important rule changes and enforcement risks. Employers in all sectors should make sure their written policies reflect OSHA’s most up-to-date changes.

Is my workplace at higher risk for an OSHA inspection during the COVID-19 pandemic?

  • Unless your workplace is in medical field, it is probably not at higher risk for an OSHA inspection. OSHA is prioritizing inspections based on high and very high workplace risk levels for COVID-19 exposure. Most workers will be considered to be in lower or medium exposure risk levels.

  • High and very high risk jobs include hospitals treating suspected and/or confirmed COVID-19 patients, nursing homes, emergency medical centers, emergency response facilities, settings where home care or hospice care are provided, settings that handle human remains, biomedical laboratories, including clinical laboratories, and medical transport.

  • Be prepared for eventual OSHA spot checks of random job sites for social distancing and PPE compliance (for example, Oregon is already doing this). 

  • Update your written safety policies for COVID-19 considerations in the event of an OSHA inspection. When in doubt, get expert (medical and legal) help. 

What happens if an employee sends a whistleblower complaint to OSHA?

  • Employers should be prepared for significant increase in whistleblower complaints. OSHA is seeing an uptick in complaints related to COVID-19 issues, including workplace crowding and improper PPE use.  

  • Fatalities and imminent danger exposures related to COVID-19 will be prioritized for inspections, with particular attention given to healthcare organizations and first responders.

  • OSHA is often sending letters to employers asking them to address the complaint. Employers should coordinate their response with outside counsel and respond to these letters immediately with responses to the specific issues outlined in the OSHA letter. Failing to adequately respond to OSHA could trigger an inspection not just of the complaint at issue, but your entire facility. 

  • Employer-reported hospitalizations will be handled using the rapid response investigation (RRI) in most cases.

How can I prepare for a OSHA inspections and enforcement actions during COVID-19?

  • Opening inspection conferences and employee interviews may be held by phone.

  • OSHA field officers may use their judgment to determine the scope of the inspection based on the alleged violation, but have the right to inspect the entire facility.

  • Employers may try to narrow the scope of the inspection to the specific complaint (for example, if OSHA has concerns about physical distancing in a particular area of the facility, the inspection should just be focused on that part of the facility). 

  • Violations of OSHA standards cited under the inspection guidance in this memorandum will normally be classified as “serious” violations.

  • OSHA now has wider discretion to enforce certain rules, particularly related to the Respiratory Protection Standard (29 CFR 1910.134). OSHA will assess whether the employer is making a “good-faith effort” to provide and ensure that workers use the most appropriate respiratory protection available. Documentation of the distribution and training on protective equipment can be used as the foundation of an employers’ good faith efforts.

NEW: What are my record-keeping requirements related to possible COVID-19 cases?

  • OSHA has suspended injury and fatality reporting requirements related to COVID-19 for employers outside of the healthcare industry unless there is “objective evidence” that the COVID-19 related injury or fatality is work-related and the evidence was “reasonably available” to the employer. 

  • Objective evidence would include a “cluster” of cases that emerge among workers in close proximity without an alternative explanation.

  • For employers, this new policy will help them 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.

  • Outside counsel can assist employers in determining whether there is “objective evidence” of a COVID-19 related injury or fatality and ensure that employers are correctly reporting to OSHA.

Employers can review the full OSHA interim guidance here.

Copyright © 2021 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume X, Number 108

About this Author

Frederick Rom Litigation Attorney Womble Bond Dickinson Law Firm Raleigh

Fred is the complete product liability and catastrophic event defense litigator and counselor. He has served as national counsel for clients and defense liaison counsel in federal multidistrict litigation, and has successfully tried significant exposure cases (including wrongful death, quadriplegia and amputation) in various jurisdictions.

With a unique depth and breadth of experience based on more than 35 years representing clients across the nation in diverse industries in litigation, Fred has acquired a multi-angle view of the litigation...

Mason E. Freeman Trial Attorney Womble Bond Dickinson Raleigh, NC

Mason is a trial lawyer who regularly defends real estate developers and contractors against claims resulting from construction design issues, defects, fires, workplace injuries or fatalities, and OSHA citations. He also works with clients “on the ground” in the aftermath of catastrophic events, including explosions, fires, injuries, and customer data loss. Mason frequently advises clients on OSHA compliance and other workplace safety issues. 

Mason also represents national manufacturers in product liability litigation across the country in the tobacco and natural gas industries,...

Alexander J. Buckley Product Liability Womble Bond Dickinson Raleigh, NC

Alex is a member of Womble Bond Dickinson’s Mass Torts Product Liability team and has years of cutting-edge litigation experience. He brings a skill set and background focused on client service, as well as short and long-term business goals.

Alex assists our manufacturing, construction and products clients with all challenges of complex litigation such as mediation, research and briefing, expert witness identification and work-up, case assessment and strategy.  Alex digs in on all of his cases, many involving high stake property damages, wrongful death and personal injury claims....