United States: OSHA Issues COVID-19 Interim Enforcement Response Plan – Modified Procedures For OSHA Investigations

On April 13, 2020, the Occupational Safety and Health Administration issued its Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) ("Memorandum"), which provides instructions and guidance to OSHA Area Offices and investigators for handling COVID-19-related complaints, referrals, and severe illness reports. Specifically, the Memorandum provides OSHA enforcement personnel with enforcement procedures and various citation template letters. The Memorandum can be found here. We recommend that employers become familiar with the modified procedures that OSHA expects from employers during a COVID-19 investigation.

The Memorandum distinguishes enforcement response based upon the risk level posed to the employee at the worksite. Employees working at sites posing medium and low risk of exposure to COVID-19 are governed by the General Enforcement Guidance. Under the General Enforcement Guidance, Area Offices are directed, in most cases, to process complaints from non-healthcare and non-emergency response establishments as "non-formal phone/fax," following the non-formal complaint and referral procedures in the Field Operations Manual (FOM). OSHA will forward complaint information deemed appropriate to federal partners with concurrent interests. Where an employer is not immediately aware of a reportable fatality, in-patient hospitalization, amputation, or loss of an eye that was the result of a work-related incident, a report to OSHA must be made within the following time period after the employer or its agent(s) learns that the reportable event was the result of a work-related incident: eight (8) hours for a fatality, and twenty-four (24) hours for an inpatient hospitalization, an amputation, or a loss of an eye. Employers must report a fatality if it occurs within 30 days of the work-related incident. After OSHA receives an employer report of a fatality, in-patient hospitalization, amputation, or loss of an eye as a result of a work-related incident, the Area Director must determine whether to conduct an inspection or a Rapid Response Investigation (RRI). The RRI is intended to identify any hazards, provide abatement assistance, and confirm abatement. RRIs are encouraged whenever possible. Specific guidance for high risk worksites is addressed below.

1. Assessing Risk Level.

The Memorandum provides that prior to any inspection related to COVID-19, each area director should evaluate the risk level of exposure to COVID-19 at the workplace based on the following categories:

• High and very high exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19 that occurs during specific medical, postmortem, or laboratory procedures. Workplaces considered to have job duties with high risk of exposures to COVID-19 include, but are not limited to, hospitals treating suspected and/or confirmed COVID-19 patients, nursing homes, emergency medical centers, emergency response facilities, settings where home care or hospice care are provided, settings that handle human remains, biomedical laboratories, including clinical laboratories, and medical transport. Aerosol-generating procedures, in particular, present a very high risk of exposure to workers. The aerosol-generating procedures for which engineering controls, administrative controls, and personal protective equipment (PPE) are necessary include, but are not limited to, bronchoscopy, sputum induction, nebulizer therapy, endotracheal intubation and extubation, open suctioning of airways, cardiopulmonary resuscitation and autopsies.
• Medium exposure risk jobs include those with frequent and/or close contact with, i.e., within 6 feet of, people who may be (but are not known to be) infected with COVID-19. Workers in this risk group may have frequent contact with travelers returning from international locations with widespread COVID-19 transmission. In areas where there is ongoing community transmission, workers in this category include, but are not limited to, those who have contact with the general public (e.g., in schools, high-population-density work environments, and some high-volume retail settings).
• Lower exposure risk jobs are those that do not require contact with people known to be, or suspected of being, infected with COVID-19, nor frequent close contact with, i.e., within 6 feet of, the general public. Workers in this category have minimal occupational contact with the public and other coworkers.

2. Complaints, Referrals, and Rapid Response Investigations (RRIs).

The Memorandum provides that complaints or referrals for any general industry, maritime, or construction operation alleging potential exposures to COVID-19 should be handled in accordance with the general procedures in Field Operations Manual, Chapter 9, Complaint and Referral Processing, except that OSHA will initially notify the employer by phone. Additional modified procedures are:

• Fatalities and imminent danger exposures related to COVID-19 will be prioritized for inspections, with particular attention given to healthcare organizations and first responders.
• All other formal complaints where employees are engaged in medium or lower exposure risk tasks (e.g., billing clerks), will not normally result in an on-site inspection - unless the employer fails to adequately respond to a phone/fax investigation.
• Non-formal complaints and referrals related to COVID-19 exposures will be investigated using non-formal processing to expedite employers' attention to alleged hazards.
• Employer-reported hospitalizations will be handled using the rapid response investigation (RRI) in most cases.
• In all phone/fax correspondences, Area Offices will assist employers by directing them to publicly available guidance documents on protective measures.
• Workers requesting inspections, complaining of COVID-19 exposure, or reporting illnesses will be informed of potential protection under one or more whistleblower statutes.

3. Inspection Scope, Scheduling, and Procedures

Facilities identified as having high and very high exposure risk jobs, such as hospitals, emergency medical centers, and emergency response facilities, will typically be the focus of any inspection activities in response to COVID-19-related complaints/referrals and employer-reported illnesses. Based on information received by an Area Office, a determination will be made regarding whether to conduct an on-site facility inspection or open an inspection remotely via a phone call. OSHA employees will continue to follow standard OSHA inspection procedures with the following changes:

• Opening Conference. Opening conferences may be conducted by phone. OSHA inspectors are directed to speak to the infection control director, safety director, and/or the health professional responsible for occupational health hazard control. Also, OSHA inspectors will include in the opening conference individuals responsible for providing records or those interviewed early in the inspection (e.g., facility administrator, training director, facilities engineer, director of nursing, human resources, etc.).
• Program and Document Review. The Memorandum instructs OSHA investigators to take the following steps electronically or remotely before conducting an onsite inspection (where feasible):
  • Determine whether the employer has a written pandemic plan as recommended by the CDC. The evaluation of an employer's pandemic plan may be based upon other written programs and, in a hospital, a review of the infection control plan.
  • Review the facility's procedures for hazard assessment and protocols for PPE use with suspected or confirmed COVID-19 patients.
  • Determine whether the workplace has handled specimens or evaluated, cared for, or treated suspected or confirmed COVID-19 patients. This should include a review of laboratory procedures for handling specimens and procedures for decontamination of surfaces.
  • Review other relevant information, such as medical records related to worker exposure incident(s), OSHA-required recordkeeping and any other pertinent information or documentation. This includes determining whether any employees have contracted COVID-19, have been hospitalized as a result of COVID-19, or have been placed on precautionary removal/isolation.
  • Review the respiratory protection program and any modified respirator policies related to COVID-19, and assess compliance with 29 CFR § 1910.134 (Respiratory Protection Standards).
  • Review employee training records, including any records of training related to COVID-19 exposure prevention or other training in preparation for a pandemic.
  • Review documentation of provisions made by the employer to obtain and provide appropriate and adequate supplies of PPE.
  • Determine if the facility has airborne infection isolation rooms/areas, and gather information about the employer's use of air pressure monitoring systems and any periodic testing procedures. Review any procedures for assigning patients to those rooms/areas and procedures to limit access to those rooms/areas only by employees who are trained and adequately outfitted with PPE.
  • Review procedures in place for transferring patients to other facilities in situations where appropriate isolation rooms/areas are unavailable or inoperable. Also, review procedures for transferring COVID-19 patients from other facilities.
  • Establish the numbers and placements, i.e., room assignments or designated area (cohorting) assignments, of confirmed and suspected COVID-19 patients under isolation at the time of inspection.
  • Establish the pattern of placements for confirmed and suspected COVID-19 patients in the preceding 30 days.
  • Determine and document whether the employer has considered or implemented a hierarchy of controls for worker protection, i.e., engineering controls, administrative controls, work practices, or PPE (including a respiratory protection program). Such documentation can be in the form of photos or design specifications.

• Walkaround. Based on the program and document review and interviews, OSHA investigators will determine the areas of the facility to be inspected (e.g., emergency rooms, respiratory therapy areas, bronchoscopy suites, and morgue). Investigators are instructed not to enter patient rooms or treatment areas while high hazard procedures are being conducted. Investigators will photograph or video where practical, but are barred from taking photographs or video of patients, and "must take all necessary precautions to assure and protect patient confidentiality."
• Applicable OSHA Standards. The Memorandum notes that several OSHA standards may apply, depending on the circumstances of the case. Investigators must rely on specific facts and findings of each case for determining applicability of OSHA standards, including:
  • 29 CFR § 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 OSH Act.
  • 29 CFR § 1910.1030 Bloodborne Pathogens.
• Citation Guidance. Investigators are directed to evaluate OSHA standards and requirements for high to very high occupational exposure risk. Violations of OSHA standards will normally be classified as serious. Where no violations of OSHA standards, regulations, or the general duty clause are observed or documented, the Memorandum instructs investigators to terminate the inspection and leave the facility.
• General Duty Clause. Where deficiencies not addressed by OSHA standards or regulations are discovered in the employer's preparedness for controlling high to very high occupational exposure risk and guidance is available from other sources (e.g. from the CDC), the Memorandum directs investigators to follow the FOM guidance for enforcing the general duty clause, including the four required elements: (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; and (4) There was a feasible and useful method to correct the hazard. Where an investigation does not show that all four of the general duties' elements are met, the Memorandum instructs the Area Office to issue a hazard alert letter (HAL) recommending the implementation of protective measures that address COVID-19 hazards. For example, if there is no clear evidence that an employee was exposed to the virus in the workplace, then the first element is not met.
• Use of CDC recommendations. The Memorandum directs investigators to use the most current CDC guidance in assessing potential workplace hazards and to evaluate the adequacy of an employer's protective measures for workers. Where the protective measures implemented by an employer are not as protective as those recommended by the CDC, the investigator should consider whether employees are exposed to a recognized hazard and whether there are feasible means to abate that hazard.
• Injury/Illness Records. The Memorandum directs investigators to review the employer's injury and illness records to identify any workers with recorded illnesses or symptoms associated with exposure(s) to patients with suspected or confirmed COVID-19 or other sources of COVID-19. For purposes of OSHA injury and illness recordkeeping, cases of COVID-19 are notconsidered a common cold or seasonal flu, and therefore the work-relatedness exception for the common cold or flu does not apply to these cases. Employers are responsible for recording cases of COVID-19 if all of the following requirements are met:
  • The case is a confirmed case of COVID-19, as defined by the CDC;
  • The case is work-related, as defined by 29 CFR § 1904.5; and
  • The case involves one or more of the recording criteria set forth in 29 CFR § 1904.7 (e.g., medical treatment, days away from work).

Several types of facilities in the healthcare industry are partially exempt from recordkeeping requirements under 29 CFR Part 1904 and are, therefore, not expected to maintain OSHA 300 logs. In such cases, the Memorandum instructs investigators to rely on interviews and other records reviewed during the investigation at these facilities.

• Respiratory Protection Standard. During an inspection, investigators will evaluate whether healthcare or emergency response workers, who are expected to perform very high and high risk exposure tasks, are using respirators (i.e., N95 or better).
  • Healthcare and emergency response job tasks with high occupational exposure risk to COVID-19 include but are not limited to: entering rooms with suspected or confirmed COVID-19 patients; attending to suspected or confirmed COVID-19 patients through close contact (within 6 feet); or transporting suspected or confirmed COVID-19 patients in enclosed vehicles.
  • Healthcare and emergency response job tasks with very high occupational exposure risk to COVID-19 include but are not limited to: surgery on suspected or confirmed COVID-19 patients; performing aerosol-generating procedures on these patients, such as bronchoscopy, sputum induction, nebulizer therapy, endotracheal intubation and extubation, open suctioning of airways; cardiopulmonary resuscitation on suspected or confirmed COVID-19 patients; or autopsies on suspected or confirmed COVID-19 patients.
  • Appropriate respiratory protection is required for all healthcare personnel providing direct care for patients with suspected or confirmed cases of COVID-19.

Equipment Shortages - Enforcement Discretion. In view of PPE shortages and limitations, OSHA has provided specific enforcement discretion, as described below, to investigators enforcing the Respiratory Protection standard, 29 CFR 1910.134, during the present COVID-19 outbreak¹. Investigators are directed to assess whether the employer is making a good-faith effort to provide and ensure workers use the most appropriate respiratory protection available for exposures to COVID-19. The employer's good faith efforts should be accomplished through, in this order:

• Implementing the hierarchy of controls in an effort first to eliminate workplace hazards, then using engineering controls, administrative controls, and safe work practices to prevent worker exposures to respiratory hazards.
• Prioritizing efforts to acquire and use equipment in the following order:
• National Institute for Occupational Safety and Health (NIOSH)-certified equipment; then
• Equipment certified in accordance with standards of other countries or jurisdictions except the People's Republic of China, unless equipment certified in accordance with standards of the People's Republic of China is manufactured by a NIOSH certificate holder, in accordance with OSHA's April 3, 2020 memo; then
• Equipment certified in accordance with standards of the People's Republic of China, the manufacturer of which is not a NIOSH certificate holder, in accordance with OSHA's April 3, 2020 memo; then
• Facemasks (e.g., medical masks, procedure masks).

• Prioritizing efforts to acquire and use equipment that has not exceeded its manufacturer's recommended shelf life before allowing workers to use equipment that is beyond its manufacturer's recommended shelf life. Equipment used beyond its manufacturer's recommended shelf life must be used in accordance with OSHA's April 3, 2020 memo.
• Prioritizing efforts to use equipment that has not exceeded its intended service life (e.g., disposable FFRs used for the first time) before implementing protocols for extended use or reuse of equipment. Extended use or reuse of equipment should follow the CDC's Strategies for Optimizing the Supply of N95 Respirators and OSHA's April 3, 2020 memo.
• Using homemade masks or improvised mouth and nose covers only, as a last resort (i.e., when no respirators or facemasks are available). Improvised masks are not PPE and, ideally, should be used with a face shield to cover the front and sides of the face.

Investigators are directed to confirm that workers perform a user seal check each time they don a respirator, regardless of whether it is a NIOSH-certified device or device certified under standards of other countries, and do not use a respirator on which they cannot perform a successful user seal check. Furthermore, investigators will determine whether the employer has trained workers to understand that if the structural and functional integrity of any part of the respirator is compromised, it should be discarded, and that if a successful user seal check cannot be performed, another respirator should be tried to achieve a successful user seal check. Over time, components such as the straps, nose bridge, and nose foam material may degrade, which can affect the quality of the fit and seal. Additionally, investigators will assess whether the employer has trained employees on the proper sequence of procedures for donning/doffing to prevent self-contamination.

Finally, investigators are instructed to confirm that employers and users of PPE avoid co-mingling products from different categories of equipment. That is, NIOSH-certified equipment, equipment that was previously NIOSH-certified but that has surpassed its manufacturer's recommended shelf life, equipment certified under standards of other countries, and equipment that was previously certified under standards of other countries but that has surpassed its manufacturer's recommended shelf life, should be stored separately.

Healthcare employers.When healthcare professionals perform surgical procedures on patients infected with, or potentially infected with, COVID-19, or perform or are present for procedures expected to generate aerosols or procedures where respiratory secretions are likely to be poorly controlled (e.g., cardiopulmonary resuscitation, intubation, extubation, bronchoscopy, nebulizer therapy, sputum induction), investigators are directed to determine whether:

• Workers are using respirators (including N95 FFRs; other FFRs; non-disposable, elastomeric respirators; or PAPRs) that are still within their manufacturer's recommended shelf life, if available, before using respirators that are beyond their manufacturer's recommended shelf life.
• Workers are using respiratory protection equipment certified exclusively in accordance with standards of the People's Republic of China and manufactured by companies that are not NIOSH approval holders only when a facemask or improvised nose/mouth cover is the only feasible alternative.
• Workers are not using expired respiratory protection equipment if respirators are available that are still within their manufacturer's recommended shelf life.

Citation guidance:

The Memorandum directs investigators to exercise enforcement discretion on a case-by-case basis when considering issuing citations under 29 CFR § 1910.134(d) and/or the equivalent respiratory protection provisions of other health standards in cases where:

• Other feasible measures, such as using partitions, restricting access, cohorting patients (healthcare), or using other engineering controls, work practices, or administrative controls that reduce the need for respiratory protection, were implemented to protect employees;
• The employer has made a good faith effort to obtain other appropriate, alternative FFRs, reusable elastomeric respirators, or PAPRs, including NIOSH-certified equipment or equipment that was previously NIOSH-certified but that has surpassed its manufacturer's recommended shelf life (in accordance with OSHA's April 3 memo);
• The employer has monitored their supply of N95s and prioritized their use according to CDC guidance; and
• Surgical masks and eye protection (e.g., face shields, goggles) were provided as an interim measure to protect against splashes and large droplets (note: surgical masks are notrespirators and do not provide adequate protection during aerosol-generating procedures).

Where the above efforts are absent and respiratory protection use is required, or voluntary use is permitted, and an employer fails to comply with fit testing, maintenance, care, and training requirements, investigators are directed to cite the applicable provision (s) of 29 CFR § 1910.134 and/or other applicable expanded health standards as serious violations.

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