OSHA to Prioritize Highest Risk Facilities for Inspection: What You Need to Do

Complaints OSHA has received from workers include the lack of available PPE, such as respirators, gloves and gowns, lack of training on appropriate standards, and possible COVID-19 illnesses in the workplace. Another concern not addressed in the guidance is the failure of employers to have a respiratory protection program if voluntary respirator use is permitted.

According to the Guidance, Area Offices should process complaints from non-healthcare and non-emergency response establishments as “non-formal phone/fax” following those procedures, which could result in an inspection after the employer responds.

Fatalities:

If a COVID-19 fatality occurs within 30 days of an exposure incident on the employer’s premises, the fatality must be reported within 8 hours of the fatality, or when the employer acquired knowledge of the COVID-19 related fatality, to the OSHA Area Office or the OSHA national telephone line. If the employer becomes aware that a work-related exposure incident or course of incidents has caused an in-patient hospitalization of an employee for COVID-19, then the employer must report the in-patient hospitalization within 24 hours of acquiring that knowledge. The hospitalization must occur within 24 hours of the exposure incident or incidents in that case.

Classification of Employer’s Risk Category:

Employers should use the OSHA 3990 document to formulate a plan for their employees. The employer should review the OSHA 3990 document with legal counsel to determine in what category it falls, i.e., Lower Risk, Medium Risk, High Risk or Very High Risk, then determine what appropriate Engineering, Administrative, Work Practice and/or PPE Controls the employer should utilize to protect its workers, and assess the feasibility of those controls.

Inspections:

According to the OSHA Guidance, any OSHA inspections related to COVID-19 will need to utilize electronic means, such as remote video surveillance, phone interviews, email correspondence, facsimile and email transmittal of documents, video conference, etc., as much as possible.

To inspect any OSHA-categorized “High Risk or Very High Risk” workplace will require consultation and coordination with the Federal OSHA Regional Office.

So, as a practical matter, in the Federal States, in a non-healthcare or non-emergency response establishment, the OSHA Area Office is likely to respond to a Complaint from an employee or other person with a fax to the employer requesting more information within several days (known as a Rapid Response Inquiry or Questionnaire).  The employer who receives such a fax should have knowledgeable legal counsel assist with the response and should have already determined what OSHA 3990 category the employer is in, and what controls it should utilize, as outlined above.

The response from the employer will be reviewed by the Area Office and then the Area Director will determine whether an inspection will occur, so that response is critical. The Area Director will also likely confer with the Regional Administrator on any such inspection.  Similar procedures will be followed in a State Plan State.