By Brent I. Clark, Benjamin D. Briggs, James L. Curtis, Daniel R. Birnbaum, Patrick D. Joyce, Adam R. Young, and Craig B. Simonsen
Seyfarth Synopsis: On April 13, 2020, OSHA released an Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) which is intended to 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. This guidance took effect immediately and will remain in effect until further notice.
The Interim Enforcement Response Plan (Memorandum) is intended to maximize OSHA’s impact in enforcing its safety standards during the Coronavirus pandemic. The Memorandum includes specific enforcement procedures (Attachment 1), a sample employer letter for COVID-19 activities (Attachment 2), a sample hazard alert letter (Attachment 3), a sample alleged violation description for a citation under the general duty clause, Section 5(a)(1), of the Occupational Safety and Health (OSH) Act (Attachment 4), and additional references, including OSHA’s prior COVID-19-related enforcement memoranda (Attachment 5).
Further, the Memorandum directs that COVID-19 related complaints, referrals, and employer-reported fatalities and hospitalizations should be investigated to ensure that employers take “prompt actions” to mitigate hazards and protect employees.
The Memorandum also identifies the most common safety complaints that have developed during the pandemic. Namely, there has been an increased number of complaints during the initial months of the outbreak related to lack of personal protective equipment (PPE), such as respirators, gloves, and gowns. Additionally, OSHA has received complaints related to lack of training on appropriate standards and about possible COVID-19 illnesses in the workplace.
The Memorandum also encourages electronic means of communication for any COVID-19 inspections, including remote video surveillance, as well as phone interviews of employees. With respect to remote video surveillance, the Memorandum does not specify the remote surveillance methods compliance officers may have at their disposal, but one possible method is the use of drones. We had previously blogged on OSHA’s guidance related to the use of drones during inspections.
Employers should consult counsel to ensure they are appropriately addressing safety issues that may arise in the age of COVID-19, and understand how to effectively manage an OSHA inspection that may arise due to the pandemic.
For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Teams.