As the fear of contracting the novel coronavirus permeates the workplace, the volume of employees expressing their concerns to OSHA has significantly increased.
On a national scale, OSHA has released interim guidance outlining enforcement procedures. State-run agencies such as Oregon have brought in additional inspectors.
Travis Vance, Fisher & Phillips partner, confirms, "What we're seeing is just a tremendous increase in complaints, especially, whereas the employees are not necessarily losing their jobs, but they want to make OSHA aware of a hazard in the workplace."
So how is OSHA responding to complaints, and what can employers do to prepare themselves?
Determining Risk
There are two different complaints for which an employer needs to consider that could result in an inspection: whistleblower and workplace safety concerns, Vance says.
However, just because a worker contacts OSHA with a COVID-19-related concern does not mean an inspection automatically will follow.
"What we're seeing mostly is that OSHA is just sending letters to employers, and they are laying out what the complaint is," Vance explains. "They're giving them usually around seven business days to respond."
An employer needs to document any proactive measures they are taking based on the specific risks present in their workplace. Vance recommends following OSHA's guidelines on COVID-19 occupational risks.
The guidance in the form of an Occupational Risk Pyramid separates job tasks into four exposure levels: very high, high, medium and low risk.
"Most American workers will likely fall in the lower exposure risk (caution) or medium exposure risk levels," the document states.
High-risk positions include healthcare workers, medical transport and mortuary employees. Medium exposure entails frequent, close contact with potentially infected persons. Lower exposure jobs do not require contact with people known to be, or suspected of being, infected with COVID-19 and minimal occupational contact with the public and other coworkers.
"Obviously, the healthcare profession has the highest risk," he says. "Other industries are basically lining up their workplaces with one of those levels on the matrix and then presetting for is exactly what the employer has done to comply with the OSHA standards, the OSHA guidelines and CDC guidelines that are appropriate for that particular hazard level," Vance says.
Employers should look to the agency' s standards when building their response plans specifically aimed at COVID-19 prevention.
Vance explains, "There are OSHA standards that are kind of corollary to this particular issue, such as bloodborne pathogen training for folks who have to handle giving temperatures or in the nurse's station -- things along those lines."
Keeping up with personal protective equipment (PPE) also is critical to ensure workers have the correct equipment. While some employers are moving to cloth masks, Vance cautions on the use of N95 and similar respirators.
"I've been getting a lot of questions about the respirators because I think employers don't realize that the N95, for all intents and purposes, is actually a filtering facepiece," he says. "They don't realize that OSHA has defined that to be a respirator for purposes of if you require somebody to wear an N95 dust mask, they would have to have a respiratory protection program."
Lastly, hazard communication is something employers must address, especially when it comes to workplace sanitization and disinfecting procedures.
Inspection Rights
It's unlikely that OSHA will complete an on-site inspection for COVID-19 complaints, Vance says.
The two main reasons the agency would initiate an investigation is if the employer does not respond to the complaint or if the response mentions an obvious, egregious safety violation. By nature, COVID-19-related inspections would involve a wide area of the plant or facility because the majority of workers would be exposed.
"It's hard to say that doesn't apply to a lot of different areas," he says. "Immediately, obviously, you want to be truthful with OSHA, but you need to figure out what the complaint is and if it's a particular area of the facility. OSHA would see that particular area, or if it's one set of documents or one set of PPE that's, that's what the scope of the inspection is."
A COVID-19 related inspection would entail a wider area of a facility than, for example, an amputation investigation involving a single machine.
Vance explains, "It depends on what the scope of the inspection what the complaint is. It could be pretty broad. It just depends on what is being alleged. But I think OSHA, for the most part, is going to give employers an opportunity to respond in writing first, and I would encourage them to make a full response. In order to avoid an on-site visit, obviously, we want employers to keep everybody safe and to make sure they're actually implementing the practices in their COVID-19 response plan."
