OSHA Revamps Investigation Protocols Amid COVID-19

By Erin Fowler and Tracey Truesdale - Franczek P.C.

April 20, 2020

Last week, the Occupational Safety and Health Administration (OSHA) issued an Interim Enforcement Response Plan for Coronavirus Disease 2019 (interim plan) to guide the agency’s field personnel in handling investigations into coronavirus-related complaints, referrals, and severe illness reports.

In March, OSHA provided COVID-19 guidance to employers categorized by their employees’ exposure risk. Exposure risk ranges from low, essentially equal to the risk to the general public, to high and very high, including occupations like health care workers. When an OSHA Area Office receives a new complaint, referral, or report, it is to evaluate into which category the employer falls and determine whether an on-site investigation is necessary. Under the interim plan, on-site investigations are generally to be reserved for complaints received from workers in high and very high exposure risk jobs, with particular emphasis on healthcare organizations and first responders. Complaints from workers in medium and low exposure risk jobs “will not normally result in an on-site inspection.” Rather, OSHA’s compliance safety and health officers (CSHOs) are to use alternative methods for gathering information, including remote video surveillance, phone interviews, email correspondences, facsimile, and email transmittals of documents, and video conferences.

The interim plan also addresses the current shortage of personal protective equipment (PPE) and instructs CSHOs to “assess whether the employer is making a good-faith effort to provide and ensure workers use the most appropriate respiratory protection available.” This “good-faith effort” assessment only applies to employers who are required to provide respiratory protection and other PPE. Notably, OSHA has not provided guidance for essential businesses whose workers may now be using PPE to limit exposure to COVID-19 but have not used it before. Compliance with OSHA’s complex PPE and respirator standards is difficult in the best of circumstances, much less during a pandemic with a shortage of appropriate PPE.

Although the interim plan provides insights for employers that are accustomed to dealing with the agency as to what they can expect over the next few months, OSHA has fallen under criticism from members of Congress and employee groups for not providing clear direction on affirmative steps that employers should be taking to protect their employees during the COVID-19 crisis. As a result, employers should anticipate an increase in investigations arising from employee complaints. Employees working at a McDonald’s restaurant in Chicago filed a complaint with OSHA last week alleging that the restaurant failed to take adequate precautions to protect workers from COVID-19. Given that contact from OSHA may now take various forms beyond an OSHA on-site visit, employers that do not have procedures in place for responding to an OSHA investigation or inquiry should consult with legal counsel.

We will continue to update you on OSHA’s guidance as it develops. In the meantime, contact your Franczek attorney with any questions.