Today, the U.S. Department of Labor's Occupational Health & Safety Administration’s (“OSHA”) Updated Interim Enforcement Response Plan for COVID-19 (the “Plan”) goes into effect. The Plan, which can be found here, increases on-site inspections related to the COVID-19 pandemic, sets forth instructions and guidance to OSHA Area Offices and Compliance Safety and Health Officers (“CSHOs”) for processing and handling referrals, severe illness reports, and complaints related to COVID-19, and expands OSHA’s employee illness record-keeping requirements to all employers.
In geographic areas where community spread of COVID-19 has significantly decreased, OSHA will return to the inspection planning policy that OSHA relied on prior to the start of the COVID-19 health crisis, but OSHA will continue to prioritize COVID-19 cases. In all instances, the Area Director (AD) will ensure that CSHOs utilize the appropriate precautions and personal protective equipment (PPE) when performing inspections related to COVID-19. In geographic areas experiencing either sustained elevated community transmission or a resurgence in community transmission of COVID-19, ADs will exercise their discretion, including consideration of available resources, to continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection. Where resources are insufficient to allow for on-site inspections, the inspections for these types of reported events will be initiated remotely with an expectation that an on-site component will be performed if/when resources become available to do so.
OSHA requires employers to "examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related." OSHA has now expanded its record-keeping requirements to all employers, and employers must record a case of a work-related illness if the case is: confirmed as a COVID-19 illness as defined by the Centers for Disease Control (“CDC”); is work-related as defined by 29 CFR 1904.5; and involves one or more of the general recording criteria contained in 29 CFR 1904.5 (such as medical treatment and days away from work).
In determining whether employers have complied with their record-keeping obligations, OSHA will consider the reasonableness of the employer’s investigation into work-relatedness, the evidence available to the employer, and the evidence that a COVID-19 case was contracted in the workplace. If after a reasonable and good faith inquiry an employer is unable to determine whether a case of COVID-19 is work-related, the employer does not need to record the illness.