Executive Order on Pandemic Regulatory Relief and Revised OSHA Guidance

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In the past several days, OSHA has revised portions of the pandemic guidance issued previously, and the President has issued an Executive Order on regulatory relief to support the economic recovery. Key aspects of these recent actions are summarized below.

Executive Order on Regulatory Relief

The President’s Order includes the following primary provisions:

  1. Agencies should address this economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery, consistent with applicable law.
  2. The heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, any emergency authorities available to them.
  3. The heads of all agencies must identify regulatory standards that may inhibit economic recovery and consider taking appropriate action, including by issuing proposed rules as necessary, to temporarily or permanently rescind, modify, waive, or exempt entities from those requirements for the purpose of promoting job creation and economic growth.
  4. The heads of all agencies shall accelerate procedures by which a regulated entity may receive a pre-enforcement ruling with respect to whether proposed conduct in response to the pandemic is consistent with statutes and regulations administered by the agency.
  5. In formulating policies of enforcement discretion, good faith attempts to comply with applicable guidance should be considered a rationale for declining enforcement. Non-adherence to guidance may not by itself form the basis for an enforcement action by a Federal agency.

Revised OSHA Guidance for Identifying Work-Related Coronavirus Cases

OSHA has revised its enforcement guidance for recording cases of coronavirus as a workplace-related illness on OSHA Form 300.  Under OSHA’s recordkeeping requirements, employers are responsible for recording cases of COVID-19, if:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
  2. The case is work-related as defined by 29 CFR § 1904.5; and
  3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7

Employers must make a reasonable inquiry to determine if a case is work related and recordable.  A reasonable inquiry does not require the employer to contact medical personal or obtain medical records.  An employer can rely on statements made by an employee.  An employer must ask the employee how he or she believes she contracted COVID-19; inquire about any out-of-work activities while respecting employee privacy; and review employees work environment while considering any other employees that may have contracted COVID-19.

An employer must consider any reasonably available information, even if obtained at a later time, after the employee’s infection.  OSHA also notes the following as indicators of work-related cases of COVID-19:

  • Several cases among employees who typically work closely together;
  • Employee contracts COVID-19 after lengthy, close exposure with a customer or another employee with a confirmed case of COVID-19, with no other explanation; or
  • The employee’s job duties include frequent, close exposure to the general public in location with ongoing community transmission;

OSHA also notes that a case is not likely to be work-related where an employee’s case is the only case in the vicinity and the job duties do not include contact with the public.   An employee’s close and frequent association with someone outside of work who contracts COVID-19 also indicates the employee’s case is not work related.

If after making a good-faith effort to determine if the case is work-related and the employer still cannot make a determination, the employer does not need to record the case as a work-related illness.

A work-related case should be coded as a respiratory illness on OSHA Form 300.  An employees’ identity need not be provided, if the employee requests confidentiality.

Revised OSHA Enforcement Plan

In response to workplaces reopening, OSHA has revised its Interim Enforcement Response Plan for COVID-19.  OSHA will increase workplace inspections and enforcement in geographic areas experiencing either sustained elevated community transmission or a resurgence in community transmission.  Particular attention for on-site inspections will be given to high-risk workplaces, including workplaces with high numbers of complaints or known COVID-19 cases.  The policy includes inspection, citation and rapid response procedures.

Applicability of OSHA standards varies by workplace.  OSHA identifies the following as standards that may apply:

  • 29 CFR Part 1904, Recording and Reporting Occupational Injuries and Illness.
  • 29 CFR § 1910.132, General Requirements – Personal Protective Equipment.
  • 29 CFR § 1910.133, Eye and Face protection.
  • 29 CFR § 1910.134, Respiratory Protection.
  • 29 CFR § 1910.141, Sanitation.
  • 29 CFR § 1910.145, Specification for Accident Prevention Signs and Tags.
  • 29 CFR § 1910.1020, Access to Employee Exposure and Medical Records.
  • Section 5(a)(1), General Duty Clause of the Occupational Safety and Health (OSH) Act of 1970.

Verdant Law includes experienced attorneys who have been following these developments closely and stand ready to assist clients with regulatory or enforcement issues, whether with OSHA or other agencies.

OSHA/EPA Guidance for COVID-19 Activities

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In the past few weeks, OSHA has taken the following actions related to short-term COVID-19 risk in the workplace, advising industry with respect to evaluating exposure, use of PPE, reporting and compliance with OSHA standards and guidance, among other matters. Most of these items can be accessed at OSHA’s COVID-19 website. In addition, EPA and CDC have issued updated guidance for cleaning and disinfecting workplaces and businesses.

  1. Fact sheet on worker exposure. OSHA has published a fact sheet, available online, describing positions from high to low risk of exposure to assist employers in classifying risk and identifying exposed workers.
  2. Interim complaint plan. OSHA has published an interim plan advising Area Offices processing coronavirus-related complaints, referrals, and severe illness reports.  OSHA’s goal is to respond rapidly to implement appropriate corrective measures.
  3. Worker rights. OSHA has published a webpage on worker rights to a safe workplace, noting that employees have a right to speak about exposure and health-related concerns and/or file a complaint with OSHA with protection from retaliation.
  4. Respirator flexibility. OSHA has issued enforcement guidance, available online, assuring employers flexibility in enforcement of the Respiratory Protection standard and other health-related standards, where employers extend or reuse N-95 masks, due to shortage.  Employers may consider use of alternative classes of NIOSH-approved respirators that provide equal or greater protection compared to an N-95 mask.
  5. Illness reporting. Employers should be aware that employee cases of COVID-19 are “reportable events” for Form 300 reporting, for compliance with 29 CFR Part 1904.  Additional explanation is provided on OSHA’s COVID-19 webpage.
  6. Planning guidance. OSHA has developed COVID-19 planning guidance based on traditional infection prevention and industrial hygiene practices, as well as relevant engineering, administrative, and work practice controls and personal protective equipment (PPE).  The guidance is available on OSHA’s COVID-19 webpage and encourages flexible H.R. policies with liberal leave for illness.
  7. Good faith compliance efforts. Noting that current developments may limit worker training opportunities, OSHA has issued interim guidance to inspectors to consider an employer’s good faith compliance efforts during the pandemic.  Inspectors are directed to consider whether the employer: (1) explored all options to comply with applicable standards (e.g., use of virtual training or remote communication strategies); (2) implemented interim alternative protections, such as engineering or administrative controls; and (3) rescheduled required activity as soon as possible. Employers unable to comply with OSHA requirements due to mandated closure should demonstrate a good faith attempt to meet applicable requirements as soon as possible following the re-opening of the workplace.

Verdant Law includes experienced OSHA attorneys who have been following these developments closely and stand ready to assist clients with OSHA issues, whether related to the pandemic or other matters.