OSHA is under pressure from both House-passed legislation requiring OSHA to issue a Temporary Emergency Standard on COVID-19, and a new Union lawsuit against OSHA to force that issuance. Against that backdrop, OSHA continues to issue Alerts and Guidance, in some cases jointly with the CDC. OSHA will use the General Duty Clause to conduct enforcement against employers that receive complaints and have taken inadequate measures to protect their workforces from the COVID-19 pandemic. In that regard, a blockbuster guidance document for the Manufacturing Sector was issued on May 12, 2020. Also, on May 19th, OSHA issued new enforcement guidance that in-person investigations in COVID-19 cases will now be a regular occurrence instead of mostly relying upon the Rapid Response Questionnaire or Request for Information.
The strong advisability of having a written COVID-19 Plan for the workplace is even more compelling now than before considering the glut of guidance from OSHA.
By way of background, OSHA first issued an Alert for all workplaces, OSHA3989, “Preventing Worker Exposure to Coronavirus (COVID-19)” in March, a one-page document with reference to the CDC website. Then, OSHA issued the 26-page OSHA3990 “Guidance on Preparing Workplaces for COVID-19,” with the one-page summary, OSHA3993, also in March. OSHA 3990 called for all employers to develop a written “Infectious Disease Preparedness and Response Plan.” OSHA stated that the Guidance was not a Standard, but emphasized the General Duty Clause, “5(a)(1)” of the OSH Act, 29 U.S.C. § 654: “[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Since the main document, OSHA3990, was issued, OSHA has issued one to two page Alerts (Guidance) in Retail (April 8), Package Delivery (April 13), Manufacturing (April 16th), Construction (April 21), Restaurants – Takeout or Curbside Pickup (May 1), Dental Practitioners (May 11), Rideshare, Taxi and Car Service Workers (May 14), Retail Pharmacies (May 14), and Nursing Home and Long Term Care Facility Workers (May 14).
Other interim guidance was issued for Healthcare, Dentistry, Emergency Response Forces, Postmortem Care, Laboratories, Airline Operations, Border Protection and Transportation Security, Correctional Facilities, Solid Waste and Wastewater Management, Environmental (i.e., janitorial) Services, In-home Repair Services, Business Travelers, and travel to areas where the virus is spreading.
Now the CDC and OSHA have jointly issued a 10-page densely-packed Joint Guidance for Manufacturing Workers and Employers (May 12), which needs to be examined in detail by every manufacturer, with the non-exhaustive list of Apparel and Footwear, Battery, Chemical, Concrete, Fireworks, Food Processing, Lead Smelters, Lubricant, Metal, Plastics, Furniture, Automobile, Printing, Pulp and Paper/Paperboard Mills, Semiconductors, Textiles and Wood Products, Manufacturers. That document was issued on the heels of the Joint OSHA/CDC Guidance for Meat and Poultry Packing Plants, which outlined significant engineering controls and face covering guidance specific to those plants.
Also, enforcement memoranda have been issued to the OSHA Regions, regarding Decontamination of Filtering Facepiece Respirators (April 24), Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 19 (COVID-19) Pandemic (April 16), Interim Enforcement Response Plan for COVID-19 (April 13) (for which OSHA is now under attack), Recording cases of COVID-19 (April 10), Temporary Guidance on Fit-Testing N95 Filtering Facepieces (April 8) (covered by a previous Steptoe & Johnson Client Alert), Guidance on the Shortage of N95 Respirators (April 3), and Healthcare Employers’ Fit Testing for N95 Respirators (March 14).
OSHA most likely does not perceive the need for a Temporary Standard when all of the guidance that has been issued and the publicity about the CDC and OSHA from OSHA’s perspective can be used to establish employer knowledge and feasible means of abatement, elements of a General Duty Clause Violation.
The document issued on April 16th, describing discretion for good faith efforts, emphasizes that those employers who can demonstrate good faith efforts in following guidance will receive discretion from OSHA regarding those good faith efforts, and those who cannot demonstrate efforts to comply, will receive enforcement. We recommend a written plan to demonstrate the good faith efforts of the employer.
We strongly advise having your Plan reviewed by experienced counsel. Please do not hesitate to contact us if we can be of assistance.