May 21, 2020

OSHA's Revised Enforcement Policies Address In-Person Inspections, Recordkeeping

Two revised policies issued by OSHA on Tuesday address enforcement of the agency’s requirements with respect to coronavirus as states’ economies begin to reopen across the United States.

New enforcement guidance states that in geographic areas where community spread of COVID-19 has “significantly decreased,” OSHA will return to the inspection planning policy that it relied on prior to the start of the pandemic. This means that OSHA intends to increase in-person inspections at all types of workplaces in areas of lower community spread. According to the agency, personal protective equipment potentially needed for inspections is more widely available, and compliance safety and health officers will use appropriate PPE and take precautions when performing inspections. OSHA will continue to prioritize inspections related to COVID-19. In areas with sustained elevated community transmission of COVID-19 or areas experiencing a resurgence in community spread, OSHA area directors will exercise discretion to “continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection.” In these areas, the agency will prioritize on-site inspections for high-risk workplaces such as hospitals and workplaces with high numbers of complaints or known COVID-19 cases.

In a second memorandum, OSHA outlines revisions to its previous enforcement policy for recording cases of coronavirus. OSHA’s earlier policy allowed most employers to use their judgment when discerning whether a case of COVID-19 was work-related, without necessarily enforcing the criteria laid out in agency regulations. This was due to the difficulty employers in areas with ongoing community transmission faced in determining whether COVID-19 cases were related to work. Under OSHA’s new policy, the agency will enforce its recordkeeping requirements for employee coronavirus illnesses for all employers.

“In many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace,” OSHA states in its news release. “OSHA's guidance emphasizes that employers must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.”

OSHA’s revised interim guidance explains what compliance safety and health officers will consider in determining whether an employer has made a “reasonable determination of work-relatedness.” According to the agency, it is sufficient in most circumstances for employers to ask employees how they believe they contracted the COVID-19 illness; discuss with employees their work and out-of-work activities that may have led to the COVID-19 illness, while respecting employee privacy; and review employees’ work environment for potential SARS-CoV-2 exposure. OSHA states that the review “should be informed by any other instances of workers in that environment contracting COVID-19 illness.”

On May 26, 2020, OSHA’s previous memorandums on these topics will be rescinded, and the new policies will go into and remain in effect until further notice. For more information, view the agency’s updated interim enforcement response plan for COVID-19 and OSHA’s revised enforcement guidance for recording cases of COVID-19.