October 20, 2020

Volume X, Number 294

October 19, 2020

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OSHA Coronavirus Guidance for Employers Continues to Evolve

Key Points: 

The coronavirus pandemic has created unprecedented challenges for employers across every industry. To help employers navigate these challenges, OSHA has posted guidance on topics ranging from workplace preparedness to recommended controls and safe work practices to OSHA enforcement. Similar to the pandemic, this guidance continues to evolve, as evidenced by the recent issuance of revised guidance on OSHA’s enforcement response plan and recordkeeping obligations. Employers should stay up-to-date on OSHA’s evolving guidance and incorporate it into their pandemic planning and response efforts.

OSHA’s Revised Enforcement and Recordkeeping Guidance

On May 19, OSHA announced revisions to its enforcement response plan and its enforcement guidance for recording cases of COVID-19This new guidance will go into effect on May 26 and remain in effect until further notice. The existing enforcement and recordkeeping guidance, issued April 13 and April 10 respectively, will remain in effect through May 25. 

The Updated Interim Response Plan for Coronavirus Disease 2019 (COVID-19):

  • Announces that OSHA will be increasing in-person inspections in areas of lower community spread. As in-person inspection activity increases, OSHA will continue to prioritize inspections related to COVID-19. In areas experiencing elevated community spread or resurgence in community spread, OSHA will continue to prioritize COVID-19 fatalities and imminent danger exposures for inspection.

  • Continues to identify the following as applicable standards that inspectors will be evaluating during inspections:

    • 29 CFR Part 1904, Recording and Reporting Occupational Injuries and Illness

    • 29 CFR § 1910.132, General Requirements - Personal Protective Equipment

    • 29 CFR § 1910.133, Eye and Face Protection

    • 29 CFR § 1910.134, Respiratory Protection

    • 29 CFR § 1910.141, Sanitation

    • 29 CFR § 1910.145, Specification for Accident Prevention Signs and Tags

    • 29 CFR § 1910.1020, Access to Employee Exposure and Medical Records

  • Reiterates that OSHA will rely on the General Duty Clause to address deficiencies not addressed by OSHA standards. In a notable change from its prior enforcement guidance, OSHA indicates that the first criterion for a General Duty Clause citation can be met where there is potential exposure to the virus in the workplace. Previously, OSHA had said that there needed to be “clear evidence that an employee was exposed to the virus in the workplace.”

  • Reiterates that violations cited under that Response Plan “will normally be classified as serious.”

The Revised Enforcement Guidance for Recordkeeping

  • Reiterates that COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if: (1) the case is a confirmed case, (2) the case is work-related, and (3) the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

  • Provides additional guidance on the circumstances in which a COVID-19 case would be considered to be work-related. Under this new guidance:

    • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.

    • An employee's COVID-19 illness is likely work-related if contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.

    • An employee's COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

    • An employee's COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.

    • An employee's COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19, (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

  • Reduces the scope of OSHA’s enforcement discretion with respect to work-relatedness. Previously, OSHA stated that it would not enforce 29 C.F.R. § 1904.5 to require employers outside of the healthcare industry, emergency response organizations, and correctional institutions to make work-relatedness determinations unless there was objective evidence that a COVID-19 case was work-related and that evidence was reasonably available to the employer. Under the new guidance, OSHA will only exercise that enforcement discretion “[i]f, after the reasonable and good faith inquiry [into the scenarios] described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19.”

  • Stresses the importance of “examin[ing] all COVID-19 cases among workers and respond[ing] appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.”

Additional Guidance and Resources

In addition to the guidance discussed above, employers should be aware of numerous OSHA guidance documents and resources related to COVID-19 available at www.osha.gov.

Conclusion

OSHA has issued several resources and guidance documents that help to clarify employers' compliance obligations and address the unique challenges that employers are facing due to the evolving pandemic. As OSHA’s most recent guidance demonstrates, OSHA’s guidance is continuing to evolve as the nature of the pandemic evolves. Therefore, it is important that employers be aware of the guidance that is currently in place and regularly check the OSHA website for developments.

This alert was prepared with the assistance of Raven Hayes.

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 142

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About this Author

Mark N. Duvall Chemicals Regulation Attorney Beveridge & Diamond Washington, DC
Principal

Mark has over two decades of experience working in-house at large chemical companies. 

His focus is product regulation at the federal, state, and international levels across a wide range of programs, and occupational safety and health.

He leads the firm’s Chemicals group. His experience under the Toxic Substances Control Act (TSCA) includes enforcement actions, counseling, rulemaking, advocacy, and legislative actions. Since the enactment of TSCA amendments in 2016, he has been heavily involved in advocacy, compliance activity, and litigation arising from EPA's implementation...

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