Update: OSHA Issued New Interim Enforcement Response Plan and Guidance for COVID-19

Posted on May 26, 2020 by Jonathan Lips

The Occupational Health and Safety Administration (OSHA) recently issued an updated interim enforcement response plan for dealing with workplace investigations during COVID-19. In addition, OSHA released revised enforcement guidance for recording cases of COVID-19. These two requirements went into effect on May 26 and replace the previous interim enforcement response plan and recordkeeping guidance, respectively, on that date. Finally, OSHA also released an alert on COVID-19 Guidance for Nursing Home and Long-Term Care Workers.  

Enforcement: The updated interim COVID-19 enforcement response plan acknowledges that states have started reopening and non-essential business workers are returning to the workplace resulting in OSHA complaints. The updated guidance takes into account these changes by outlining a complaint, referral, and rapid response investigation process for areas where COVID-19 has significantly decreased (normal procedures) and for high-risk workplaces/areas with sustained elevated community transmission or a resurgence in transmission. For high-risk areas, OSHA will prioritize inspections for fatalities and imminent danger exposures. If an onsite inspection is not allowable due to insufficient resources, the investigation will be initiated remotely.

Recordkeeping: OSHA did not change the requirement outlined in the previous guidance on April 10 for employers to report confirmed cases of COVID-19 as a recordable illness so long as the case is work related and results in days away from work, restricted work, or death. The guidance reminds employers that recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.

The new enforcement guidance outlines what will be considered when determining whether an employer has complied with this recordkeeping obligation and made a reasonable interpretation of work relatedness. Those considerations for determining compliance include:

• The reasonableness of the employer's investigation into work-relatedness.
• The evidence available to the employer.
• The evidence that a COVID-19 illness was contracted at work.

The OSHA alert with guidance for nursing homes and long-term care workers is consistent with directives from CMS and the CDC. The guidance does, however, specifically recommend employees maintain at least six feet from others to the extent possible, to stagger break periods to avoid crowding in break rooms, and to encourage workers to report any health or safety concerns.