Earlier this year, OSHA issued Guidance on Preparing Workplaces for COVID-19, an educational reference designed to advise employers in all industries on implementing engineering, administrative, and work practice controls and personal protective equipment (PPE). The guidance is purely advisory and does not create new legal obligations. Nevertheless, now that OSHA is turning its attention to enforcement and investigation of COVID-related workplace hazards, the guidance proves to be a good way to set your company up to survive an OSHA inspection.
To protect its compliance officers and inspectors, OSHA has indicated it will maximize the use of electronic communication to perform inspections, document requests and witness interviews to address reports of COVID-19-related workplace hazards. Logically, OSHA has focused on very high and high-exposure risk environments in the healthcare and emergency response industries. As other industries return to in-person work and offices continue to reopen, the guidance is helpful in all exposure risk levels and all industries as it sets forth what standards OSHA will apply in its investigations and what documents inspectors will likely request and review.
Inspection and Document Request
Although OSHA typically initiates an inspection following complaints, referrals, or fatalities and mostly in front-line industries such as hospitals, healthcare, nursing homes, long-term care settings, and meat/poultry processing facilities, any workforce is subject to an inspection whether or not OSHA receives an allegation about COVID-19 in the workplace. In the event of an investigation, OSHA compliance officers will typically conduct an opening conference, program and document review, and onsite inspection and/or witness interviews. As mentioned above, right now OSHA will likely perform the opening conference and witness interviews remotely (e.g., telephone or video conferencing). With regards to the document review, OSHA will likely ask you to produce the following documents to establish your efforts to keep employees safe from COVID-19:
- Written plans, SOPs or procedures to address worker exposure to COVID-19
- Employee training content to address COVID-19 hazards
- Details of cleaning operations and schedules
- Engineering, administrative, or work practice controls that address exposure to COVID-19 and a timeline for such controls
- Photos and/or videos of modifications to workstations and/or common areas
- Documentation of what PPE (masks, gloves, etc.) is currently available and how you have distributed it and how employees use it, as well as any PPE hazard assessments or training documents
- Written procedures, plans or other documentation for any COVID-19 testing
- Documentation of any suspected or confirmed cases of COVID-19 among employees
- Documentation of any suspected or confirmed cases of COVID-19 among visitors, clients, vendors or customers
- Risk assessments regarding COVID-19 exposure of employees, including whether the assessments were shared with employees and how they were implemented
- Safety data sheets for any cleaning/sanitizing chemicals used in the workplace
In addition to the General Duty Clause of the OSH Act, which requires that all employers provide a work environment free from recognized hazards that are causing or are likely to cause death or serious physical harm, OSHA will be looking to the following standards to determine whether you have committed a violation with regards to COVID-19:
- Respiratory Protection
- Duty to provide a medical evaluation before a worker is fit-tested for the use of a respirator
- Duty to fit-test for a tight-fitting facepiece respirator
- Duty to establish, implement, and update a written respiratory protection program with worksite-specific procedures
- Recording and Reporting Occupational Illnesses
- Duty to keep records of fatalities, injuries, or illnesses that are work-related
- Duty to report a fatality within eight hours after the death of any employee as a result of a work-related incident
- Personal Protective Equipment
- Duty to inspect the workplace to determine if hazards are present, or are likely to be present, which require the use of PPE
- Duty to select and require the use of appropriate PPE
- Duty to provide training to each employee required to use PPE
In addition to the above, OSHA requires that you protect employees generally from COVID-19 hazards at work, for example, by installing plastic barriers and ensuring social distancing.
OSHA has published a document that provides a description of the violations and OSHA standards that have been cited most frequently during COVID-19 related inspections. The publication provides some insight about which workplace hazards have most often resulted in OSHA citations, and what you need to focus on to adequately protect workers. The data provided in the publication is based on inspections where OSHA issued citations.
If you are maintaining thorough records of your efforts related to COVID-19, you will increase the likelihood that you will survive an inspection without assessment of a citation or fine. If you are not sure what you would do if OSHA calls, contact your lawyer to obtain advice and counsel on what you need to do now to be prepared.