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:
- 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.
- 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.
- 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.
- 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.
- 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:
- The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
- The case is work-related as defined by 29 CFR § 1904.5; and
- 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.