OSHA Ramps Up Physical Inspections, COVID Case Reporting

By Braden Campbell
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Law360 (May 19, 2020, 7:46 PM EDT) -- The U.S. Department of Labor's workplace safety office is stepping up in-person inspections in areas where COVID-19 infections have slowed and making more employers disclose when workers come down with the coronavirus, according to new enforcement memos issued Tuesday.

The Occupational Safety and Health Administration told state and regional officials where "community spread of COVID-19 has significantly decreased" to return to the pre-coronavirus playbook after halting most in-person inspections at the height of the pandemic last month.

The agency also said all employers subject to its illness record-keeping rules must track and report workplace COVID-19 cases as best they can, nixing an earlier policy excusing all but health care, corrections and first response employers from that duty.

The new enforcement memos supersede April guidance that relaxed certain rules as the pandemic ravaged essential businesses and shuttered others. The agency eased the record-keeping rules on April 10, and on April 13 directed regional officials to prioritize inspections into health care and other high-risk workplaces and probe other complaints over the phone and by fax.

Tuesday's inspection memo keeps the focus on employers whose workers are at high exposure risk while also calling for in-person inspections of other workplaces in some cases. OSHA offices in areas where the virus has slowed should "follow normal procedures" to investigate medium- or low-risk workplaces, the agency said. Inspectors should investigate deaths and complaints about electrocution and other imminent dangers on-site, and "may" probe COVID-19 exposure complaints in-person "based on case-specific facts or resource limitations constraining such investigations," the agency said.

The memo sets out different rules for inspecting high-risk workplaces and employers in areas where coronavirus is still surging. It gives regional officials discretion over how to investigate complaints involving high-risk employers, such as an allegation that a hospital exposed workers to COVID-19 patients without providing adequate personal protective equipment.

Officials should decide whether to investigate such complaints in-person or remotely based on "all relevant factors," such as whether the employer lacks personal protective equipment supplies. If "resources are insufficient to allow for on-site inspection of a fatality or imminent danger event," investigators should start their probe remotely and move in-person "if/when resources become available," the agency said. It also left up to regional officials how to investigate complaints about lower-risk workplaces.

The other OSHA memo restores employers' obligations to disclose coronavirus cases under its record-keeping rule, which makes employers in certain industries with more than 10 workers track job-related injuries and illnesses and report them to OSHA.

The memo makes allowances for the challenge of tying COVID-19 diagnoses to the workplace given the virus' ubiquity, however. If an employer can't tell whether an afflicted employee got the virus at work by probing the worker's nonwork exposure and considering certain evidence, such as whether the worker interacts with the public in an area with high virus spread, it does not have to report the case, OSHA said.

In another announcement Tuesday, the DOL touted new resources for rooting out unemployment fraud, including a list of state reporting hotlines and additions to a rolling list of frequently asked questions on its website. A DOL representative did not immediately clarify which questions were new.

--Editing by Stephen Berg.

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