By Robert G. Chadwick, Jr.,  Partner,  Freeman Mathis & Gary, LLP.

Effective May 26, 2020, OSHA is rescinding the Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), published by the agency on April 13, 2020 (See April 15, 2020 Post), and the Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), published by the agency on April 10, 2020. As businesses reopen, OSHA will instead be guided by two revised enforcement policies.

Inspection Priorities

First, under an Updated Interim Enforcement Plan for Coronavirus Disease 2019 (COVID-19, OSHA will resume in-person inspections of workplaces. The agency will continue to prioritize COVID-19 cases. “Particular attention for on-site inspections will be given to high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19, as well as workplaces, with high numbers of complaints or known COVID-19 cases.”

OSHA will continue to provide enforcement priority to “[h]igh and very high exposure risk jobs.” In this regard, the Updated Plan says:

“High and very high exposure risk jobs are those with high potential for exposure to known or suspected sources of SARS-CoV-2 that occurs during specific medical, postmortem, or laboratory procedures. Workplaces considered to have job duties with high risk of exposures to COVID-19 include, but are not limited to, 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. The aerosol-generating procedures, in particular, present a very high risk of exposure to workers. The aerosol-generating procedures for which engineering controls, administrative controls, and personal protective equipment (PPE) are necessary include, but are not limited to, bronchoscopy, sputum induction, nebulizer therapy, endotracheal intubation and extubation, open suctioning of airways, cardiopulmonary resuscitation and autopsies.”

 OSHA standards that may be investigated by OSHA as to COVID-19 include:

•    Recording and Reporting Occupational Injuries and Illness (29 CFR 1904)
•    General Requirements – Personal Protective Equipment (29 CFR 1910.132)
•    Eye and Face Protection (29 CFR 1910.133)
•    Respiratory Protection (29 CFR 1910.134)
•    Sanitation (29 CFR 1910.141)
•    Specification for Accident Prevention Signs and Tags (29 CFR 145)
•    Access to Employee Exposure and Medical Records (29 CFR 1910.145)
•    General Duty Clause

Recording COVID-19 Cases

Second, under Revised Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19),  COVID-19 is a recordable illness if:

1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control (CDC);
2. The case is work-related as defined by 29 C.F.R. 1904.5; and
3. The case involves one or more of the general recording criteria set forth in 29 C.F.R. 1904.7.

The Revised Guidance acknowledges the difficulty of determining whether a COVID-19 illness is work-related. Still, OSHA maintains that an employer must conduct a reasonable investigation as to whether the disease was contracted at work. In this regard the Revised Guidance states:

“Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.”

Even after a reasonable investigation, it may still not be entirely clear whether COVID-19 was contracted at work.  In this regard, the Revised Guidance provides:

• 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 it is 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.

Reading Between The Lines

OSHA has already been facing intense political pressure to take more decisive action to safeguard workers in the wake of the COVID-19. This pressure will only become more intense as business previously subject to state and local closure orders reopen.  Employers should thus expect OSHA to be considerably more active in the remaining months of 2020.

Most employers already know, moreover, that OSHA obligations do not exist in a vacuum. OSHA inspections and illness recordings are sure to impact exposures other than OSHA citations, such as wrongful death actions, criminal prosecutions and workers’ compensation claims.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.