In guidance to its enforcement staff released on April 13, OSHA has re-emphasized the obligations of employers, particularly in the healthcare industry, to ensure workplace health and safety and to report illnesses and deaths relating to COVID-19 notwithstanding the pandemic.  The guidance also recognizes shortages of N-95 masks and other PPE and other practical considerations that OSHA will take into account in determining whether to bring enforcement actions.

Key aspects of the guidance include:

  • OSHA to Focus on High-Exposure Jobs, Especially Hospitals. OSHA has explained that, going forward, its enforcement activity relating to COVID-19 will prioritize “healthcare organizations and first responders,” as well as other workplaces “with potential for high-risk exposure to SARS-CoV-2.”
  • Complaints Will Be Important Triggers for OSHA Investigations. For both healthcare facilities and other, lower-risk workplaces, OSHA notes that it may inspect facilities based on “complaints, referrals, and employer-reported fatalities and hospitalizations.”  OSHA indicates it will focus in particular on “formal complaints alleging unprotected exposures to COVID-19 for workers with a high/very high risk of transmission, such as a fatality that is potentially related to exposures to confirmed or suspected COVID-19 patients while performing aerosol-generating procedures without adequate PPE in a hospital.”  Lower risk facilities will likely have remote telephonic investigations, not on-site investigations.
  • OSHA Continues to Rely on CDC Guidance. While OSHA’s guidance notes a number of OSHA standards and principles that apply to COVID-19, OSHA also makes clear that “[t]he most current CDC guidance should be consulted in assessing potential workplace hazards and to evaluate the adequacy of an employer’s protective measures for workers.”  Accordingly, employers should strive to document good-faith efforts to comply with the CDC’s evolving guidance.
  • OSHA Acknowledges PPE Shortages and Enforcement Discretion. OSHA has acknowledged “shortages” of N95 respirators, as well as “of other disposable respirators, surgical masks, and fit-testing supplies and equipment.”  OSHA has thus provided specific guidance relating to use of such PPE, including relaxing certain requirements relating to use of expired equipment or equipment certified by other countries.  In addition, OSHA indicates it may exercise enforcement discretion where there are “good faith” efforts to comply, including through use of engineering controls, administrative controls, and safe work practices.  Again, employers should document their practices to demonstrate good-faith efforts maximize worker safety.

OSHA’s enforcement plan builds on several other recent guidance documents discussed in the plan, including an April 10 memorandum addressing employers’ obligations to record COVID-19 illnesses.  That guidance generally exempted most employers from needing to record COVID-19 illnesses, unless there was “objective evidence” that was “reasonably available to the employer” that the COVID-19 case was work-related.  However, that exemption did not extend to healthcare facilities, emergency response organizations, and correctional institutions, which “must continue to make work relatedness determinations,” even if the employer cannot definitively identify that COVID-19 was contracted on the job.  OSHA has not yet provided specific guidance on when COVID-19 cases in these industries should be deemed work-related.  The April 10 guidance also reiterates that, at the request of an employee, his or her name should not be entered on the OSHA log.

While not discussed in the guidance, employers should record and report illnesses even if they are unable to do so within the seven-day deadline that typically applies, or the 24-hour deadline that applies if an employee is hospitalized.