OSHA Issues Plan for Investigation of COVID-19 Related Complaints

April 17, 2020Alerts

Since the start of the COVID-19 outbreak, the Occupational Safety and Health Administration (OSHA) has received complaints regarding lack of personal protective equipment (PPE), including respirators, gloves, and gowns; insufficient training on appropriate standards; and possible COVID-19 illnesses in the workplace. Recently, OSHA issued a plan on how it expects its field offices and Compliance Safety and Health Officers (CSHOs) to investigate those complaints.

On April 13, 2020, OSHA issued an Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19). The plan provides instruction and guidance to area offices and CSHOs for addressing complaints, referrals, and severe illness reports related to COVID-19.

All prior OSHA-issued guidance and regulations remain in effect, but the plan provides additional COVID-19 specific guidance for the completion of inspections and issuance of citations. The plan is effective immediately, but intended to be limited to the duration of the COVID-19 health crisis. It seeks to strike a balance between ensuring safe and secure workplaces for workers while also protecting the safety of CSHOs. Employers should understand how CSHOs will be investigating complaints and what they will be looking for prior to and during an investigation so that they are prepared with the necessary information.

OSHA enforcement during COVID-19 will be prioritized based on the risk level of the workplace:

High Risk and Very High Risk (workers, such as those in the health care industry, with high potential exposure to known or suspected sources of COVID-19)

Medium Risk (workers with ongoing community contact such as high-volume retail in areas experiencing ongoing community transmission)

Low Risk (workers who do not have frequent contact with the general public)

When a complaint is received by OSHA, the agency will notify the employer by telephone. Overall, OSHA will maximize use of electronic communication, including phone interviews, email, fax, videoconferences and remote video surveillance and only conduct on-site investigations when deemed necessary. On-site inspections will generally be limited to formal complaints regarding unprotected exposure of workers with high/very high risk of transmission. Formal complaints for medium or lower exposure risk tasks will likely not receive an on-site inspection unless OSHA receives inadequate responses to an informal investigation by phone or fax. Likewise, non-formal complaints will receive non-formal processing.

Employer-reported hospitalizations will generally be handled using the rapid response investigation (RRI), meaning the employer will be responsible for conducting its own investigation and sharing its findings with OSHA.

If a CSHO needs to perform an on-site inspection, the officer will likely seek to perform the following steps remotely before the inspection:

  • Hold an opening conference.
  • Interview individuals responsible for providing documents relevant to the inspection (such as the facility administrator, training director, facilities engineer, director of nursing, human resources, etc.).
  • Review any written pandemic plan or relevant portions of an emergency preparedness plan.
  • Review the facility’s procedures for hazard assessment and protocol for PPE.
  • Determine whether the facility has handled specimens or evaluated, treated or cared for known or suspected COVID-19 patients.
  • Review any other relevant information.
  • Review the respiratory protection program and compliance with OSHA guidance and regulations.
  • Review employee training records.
  • Review any documentation regarding the employer’s attempts to secure PPE.
  • Determine if the facility has airborne infection isolation rooms/areas and review any policies and procedures with regard to the employer’s use of those rooms/areas.
  • Review procedures for transferring patients.
  • Identify the number and placement of any known or suspected COVID-19 patients and their placement for the preceding 30 days.
  • Determine and document whether the employer has considered or implemented a hierarchy of workplace controls for worker protection.

When performing an on-site inspection, the CSHO will bring their own PPE and also comply with any additional PPE policies of the employer. The CSHO will document the inspection, including taking photographs and videotaping, however, they are prohibited from photographing or taking video of patients and must take all precautions to ensure patient confidentiality. The CSHO will also take care not to interfere with the provision of ongoing medical services.

The CSHO will be familiar with the most recent Centers for Disease Control and Prevention (CDC) guidelines, thus employers should update their policies and procedures in accordance with the CDC guidelines.

Citations will be issued where there is a violation of OSHA standards or regulations, or where an employer is deficient in complying with guidance such as CDC guidelines and there is evidence of all four of the following:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed.
  2. The hazard was recognized.
  3. The hazard was causing or was likely to cause death or serious physical harm
  4. There was a feasible and useful method to correct the hazard.

If any one of these elements is missing, then OSHA will issue a Hazard Alert Letter, recommending protective measures. The form of the Hazard Alert Letter is set forth in Attachment 3 to the plan.

For a summary of OSHA's guidance on workplace safety during the COVID-19 pandemic, read our previous alert OSHA Provides Guidance for Employers on Preparing Workplaces for COVID-19.

Additional Information