OSHA Issues Interim Enforcement Response Plan for COVID-19

April 14, 2020 Advisory

Today, the Occupational Safety and Health Administration (OSHA) issued its Interim Enforcement Response Plan for COVID-19, which instructs OSHA field personnel in the proper investigation of COVID-19-related complaints, referrals, and employer-reported hospitalizations and fatalities. The guidance clearly signals that OSHA’s intent is to avoid having to conduct on-site COVID-19-related inspections of worksites, and that it wishes to reserve such on-site inspections for the health care and emergency response industries.

The guidance directs compliance safety and health officers (CSHOs) to focus enforcement efforts on “high and very high exposure risk jobs,” which are generally in the health care field and present heightened risk of employee exposure to COVID-19. OSHA indicates that on-site inspections should rarely be conducted for lower-risk worksites, and only sparingly for high or very high risk worksites.

The guidance recommends that in most cases, complaints, even formal complaints, from lower risk worksites be handled as “non-formal phone/fax.” Phone/fax is a long-standing means of addressing employee complaints in which OSHA faxes or emails a letter to the employer and gives the employer an opportunity to respond to the complaint by letter. If the response is satisfactory, OSHA closes its file unless the employee offers additional information after the response is received. The guidance includes form letters for OSHA Area Offices to use in their investigations. 

When on-site inspections are warranted, which will normally be reserved for high or very high risk worksites, CSHOs are directed to conduct the inspections with the following guidelines in mind:

  1. Conduct investigation and inspection remotely whenever possible before attempting a walk-around inspection (e.g., via phone or online). For example, CSHOs should review documents electronically to determine if the employer has a written pandemic plan as recommended by the Centers for Disease Control and Prevention (CDC); review hazard assessment, personal protective equipment (PPE) and respiratory protection policies and protocols; review medical records relevant to employee exposure (if relevant); and review training records relating to COVID-19 exposure prevention.
  2. Assess efforts made by the employer to obtain and provide appropriate and adequate supplies of PPE (recognizing that such supplies are limited).
  3. Determine if the employer has a procedure for placing, isolating, transferring or “cohorting” confirmed and suspected COVID-19 patients.
  4. Assess and document whether the employer has implemented the recommended “hierarchy of controls” for worker protection (i.e., engineering controls, administrative controls, work practices and PPE).
  5. Consult current CDC guidance to evaluate the sufficiency of an employer’s protective measures for workers.

OSHA indicates that the most applicable standards include: Recording and Reporting, PPE, Eye/Face Protection, Respiratory Protection, Sanitation, Accident Prevention Signs/Tags, Access to Employee Exposure/Medical Records and the General Duty Clause. However, OSHA states that if there is no “clear evidence” that an employee was exposed to COVID-19 at work, then a General Duty Clause citation is not appropriate. The directive states that citations issued for COVID-19-related violations will typically be classified as “serious.”

The guidance states that most cases of employer-reported fatalities and hospitalizations will be handled using OSHA’s Rapid Response Investigation tool, which is a questionnaire that OSHA has used for several years. On April 10, OSHA issued guidance applicable to the recording of COVID-19 cases on the employer’s OSHA 300 log, but did not address the requirement to report work-related hospitalizations or fatalities to OSHA. The April 10 guidance recognized the difficulty of determining whether COVID-19 is work-related for recording purposes, and informed employers that it did not intend to enforce recording requirements with respect to COVID-19 cases, except in health care and similar industries, and where there is clear, objective evidence of work-relatedness. Because the same difficult work-relatedness determination is required for both recording and reporting, employers should not assume that all COVID-19 hospitalizations or deaths of employees are reportable, and should analyze those cases carefully.   

Additionally, OSHA’s fatality and hospitalization regulations require reporting of a fatality in which the death occurs within 30 days of the “work-related incident,” or in which the hospitalization occurs within 24 hours of the “work-related incident.” 29 CFR §1904.39(b)(6). It would seem that the “work-related incident” refers to point of transmission of the virus to the employee who then becomes ill, although the reporting requirement is not specific to COVID-19. Since the virus can have an extended latency period, it seems unlikely that a person’s symptoms would advance to a stage in which the person needs to be hospitalized within just 24 hours of contact with an infected person, or even within 24 hours of manifestation of symptoms. 

The guidance reminds OSHA inspectors to inform any employee-complainant of OSHA’s whistleblower protections. Employers must ensure they do not to retaliate against any employee for exercising rights protected by the OSH Act, which can include voicing COVID-19 or other safety concerns to a supervisor. 

Contact Us
  • Worldwide
  • Boston, MA
  • Chicago, IL
  • Denver, CO
  • Dublin, Ireland
  • Edwardsville, IL
  • Jefferson City, MO
  • Kansas City, MO
  • Las Vegas, NV
  • London, England
  • Miami, FL
  • New York, NY
  • Orange County, CA
  • Philadelphia, PA
  • Princeton, NJ
  • Salt Lake City, UT
  • St. Louis, MO
  • Washington, D.C.
  • Wilmington, DE
abstract image of world map
Boston, MA
800 Boylston St.
30th Floor
Boston, MA 02199
Google Maps
Boston, Massachusetts
Chicago, IL
100 North Riverside Plaza
Suite 1500
Chicago, IL 60606-1520
Google Maps
Chicago, Illinois
Denver, CO
4643 S. Ulster St.
Suite 800
Denver, CO 80237
Google Maps
Denver, Colorado
Dublin, Ireland
Fitzwilliam Hall, Fitzwilliam Place
Dublin 2, Ireland
Google Maps
Edwardsville, IL
115 N. Second St.
Edwardsville, IL 62025
Google Maps
Edwardsville, Illinois
Jefferson City, MO
101 E. High St.
First Floor
Jefferson City, MO 65101
Google Maps
Jefferson City, Missouri
Kansas City, MO
2345 Grand Blvd.
Suite 1500
Kansas City, MO 64108
Google Maps
Kansas City, Missouri
Las Vegas, NV
7160 Rafael Rivera Way
Suite 320
Las Vegas, NV 89113
Google Maps
Las Vegas, Nevada
London, England
Royal College of Surgeons of England
38-43 Lincoln’s Inn Fields
London, WC2A 3PE
Google Maps
Miami, FL
355 Alhambra Circle
Suite 1200
Coral Gables, FL 33134
Google Maps
Photo of Miami, Florida
New York, NY
7 Times Square, 44th Floor
New York, NY 10036
Google Maps
New York City skyline
Orange County, CA
19800 MacArthur Boulevard
Suite 300
Irvine, CA 92612
Google Maps
Philadelphia, PA
2005 Market Street
29th Floor, One Commerce Square
Philadelphia, PA 19103
Google Maps
Philadelphia, Pennsylvania
Princeton, NJ
100 Overlook Center
Second Floor
Princeton, NJ 08540
Google Maps
Princeton, New Jersey
Salt Lake City, UT
222 South Main St.
Suite 1830
Salt Lake City, UT 84101
Google Maps
Salt Lake City, Utah
St. Louis, MO
7700 Forsyth Blvd.
Suite 1800
St. Louis, MO 63105
Google Maps
St. Louis, Missouri
Washington, D.C.
1717 Pennsylvania Avenue NW
Suite 400
Washington, DC 20006
Google Maps
Photo of Washington, D.C. with the Capitol in the foreground and Washington Monument in the background.
Wilmington, DE
1007 North Market Street
Wilmington, DE 19801
Google Maps
Wilmington, Delaware