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Re-openings amid COVID-19 prompt increased OSHA onsite inspections, recordkeeping, reporting enforcement for all employers

By Pamela Wolf, J.D.

The agency has issued updated guidance, effective May 26, on these and other issues, rescinding its earlier interim guidance.

As non-essential workplaces have begun to reopen or prepare to reopen across the county, OSHA has updated its guidance to provide for more onsite inspections and enforce recordkeeping and reporting requirements against all employers in response to the COVID-19 pandemic.

Notably, the federal safety and health agency has been harshly criticized by lawmakers, unions, and others for being “missing in action” during the pandemic. Hoping to compel OSHA to issue an enforceable standard to keep employees safe from the spread of the coronavirus, the AFL-CIO sued the agency on May 18, filing an emergency petition asking the D.C. Circuit Court of Appeals to step in as the nation’s workplaces begin to reopen as stay-at-home orders are lifted.

Updated interim enforcement. On May 19, OSHA issued its “Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19),” which on May 26 will rescind and replace its previous version. Both provide instructions and guidance to Area Offices and compliance safety and health officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports. The updated version will remain in effect until further notice and is time-limited to the current COVID-19 public health crisis.

Increasing onsite inspections.Announcing the updated enforcement guidance, OSHA noted that it is increasing in-person inspections at all types of workplaces. The new guidance reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available. OSHA said that its staff will continue to prioritize COVID-19 inspections and will utilize all enforcement tools.

Revised recordkeeping requirements. OSHA is also revising and rescinding its earlier “Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19).” Beginning May 26, the revised guidance will require employers to record cases of the coronavirus, if the case:

Under the new policy, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee coronavirus illnesses for all employers. Under the earlier, April 10 guidance, recordkeeping requirements were eased under certain circumstances for employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions.

Hard to determine workplace exposure. Although OSHA will now be enforcing the recordkeeping requirements against all employers, it also acknowledged that due to the nature of COVID-19 and community spread, in many instances it will be difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.

However, employers “must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related,” the agency stressed.

Where there are not recording obligations. OSHA also noted that under existing regulations, employers with 10 or fewer employees and certain employers in low hazard industries do not have recording obligations; they need only report work-related coronavirus illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.