| MEMORANDUM FOR: | REGIONAL ADMINISTRATORS
STATE PLAN DESIGNEES |
| THROUGH: | AMANDA EDENS
Deputy Assistant Secretary |
| FROM: | PATRICK J. KAPUST, Acting Director
Directorate of Enforcement Programs |
| SUBJECT: | Updated Interim Enforcement Response Plan for
Coronavirus Disease 2019 (COVID-19) |
This Updated Interim Enforcement Response Plan for Coronavirus
Disease 2019 (COVID-19) provides new instructions and guidance to
Area Offices and Compliance Safety and Health Officers (CSHOs) for
handling COVID-19-related complaints, referrals, and severe illness
reports in workplaces that are not covered by the June 21, 2021,
Emergency Temporary Standard for COVID-19 (hereafter referred to as
the ETS). The ETS covers healthcare and healthcare support service
workers, with a few exceptions. As such, the inspection
instructions in this document mainly covers non-healthcare
workplaces, while a separate compliance directive DIR 2021-02
(CPL-02), dated June 28, 2021, provides inspection procedures and
enforcement policies for the ETS, 29 CFR §1910.502 and 29 CFR §1910.504. Upon issuance of this memorandum, OSHA's March 12, 2021
Updated Interim Enforcement Response Plan will be rescinded, and
this new Updated Interim Enforcement Response Plan will become
effective for workplaces not covered by the COVID-19 ETS, and will
remain in effect until further notice.1 This guidance is intended to be
time-limited to the current COVID-19 public health crisis. Please
frequently check OSHA's webpage at www.osha.gov/coronavirus for
updates.
This memorandum also includes policy changes regarding
enforcement discretion for periodic respiratory protection
equipment shortages and associated constraints (i.e., fit-testing supplies and provision of
related services) during the COVID-19 pandemic. Although OSHA had
not waived compliance with any of its requirements during the
pandemic, the agency set forth temporary enforcement discretion
policies that CSHOs could consider when enforcing OSHA standards,
such as the Respiratory Protection standard, 29 CFR §1910.134,
and/or equivalent respiratory protection provisions of other health
standards. These OSHA memoranda aligned with Centers for Disease
Control and Prevention's (CDC's) Strategies for
Optimizing the Supply of N95 Respirators, issued at an earlier
stage in the pandemic. The exercise of enforcement discretion was
intended to be time-limited and applicable, on a case-by-case
basis, to employers using the CDC-recommended conservation
strategies during shortages of filtering facepiece respirators
(FFRs) like N95s. Updated guidance from the CDC in its Strategies document indicates that the supply and
availability of NIOSH-approved respirators has increased
significantly over the last several months, and recommends that
healthcare facilities stop purchasing and using non-NIOSH-approved
respirators, not store previously decontaminated respirators, and
promptly resume conventional practices instead of using crisis
capacity strategies.2 Similarly, the Food and Drug Administration
(FDA) has revoked its emergency use authorizations (EUAs), and
issued revised guidance advising healthcare personnel and
facilities to transition from using crisis capacity strategies,
such as decontamination, as a means of conserving N95s or other
disposable FFRs, and from using non-NIOSH-approved disposable
respirators, such as KN95s.3 In light of these recent pronouncements
from CDC and FDA, circumstances precipitating the issuance of
OSHA's respiratory protection enforcement discretion memoranda no
longer exist. Therefore, where respirator supplies and services are
readily available, OSHA will cease to exercise enforcement
discretion for temporary noncompliance with the Respiratory
Protection standard based on employers' claims of supply shortages
due to the COVID-19 pandemic. Similarly, the agency will no longer
exercise enforcement discretion of requirements in other health
standards. As such, OSHA is rescinding its previous temporary
enforcement discretion memoranda. It should be noted that the ETS
discourages, but allows reuse of FFRs in covered
healthcare-associated industries only when
facing shortages of FFRs under certain conditions and for limited
periods of time. OSHA will address such case-specific situations
using the appropriate provisions in 29 CFR §1910.502 and/or 29 CFR
§1910.504.
In response to the January 21, 2021 Presidential Executive Order
on Protecting Worker Health and Safety, OSHA developed and
implemented a National Emphasis Program (NEP) for COVID-19, DIR
2021-01 (CPL-03), on March 12, 2021, to ensure that employees in
high hazard industries or work tasks are protected from
occupational exposures to SARS-CoV-2 (severe acute respiratory
syndrome coronavirus 2), the virus that causes COVID-19.
Concurrently with the NEP, on March 12, 2021, OSHA released the
previous version of its Updated Interim Enforcement Response Plan,
to provide instructions on inspecting establishments for
COVID-19-related hazards. Also, in response to the Presidential
Executive Order, OSHA subsequently issued an ETS to protect
healthcare and healthcare support service workers from occupational
exposure to COVID-19 in settings where people with COVID-19 are
expected to be present. The ETS was published in the Federal
Register on June 21, 2021, and became effective on thesame date.
The March 12, 2021 NEP, DIR 2021-01 (CPL-03), has been superseded
by the July 7, 2021 revised NEP, DIR 2021-03 (CPL 03).
Through the procedures and instructions in this updated memo,
OSHA will prioritize its enforcement resources to ensure employers
eliminate and control workplace exposures to SARS-CoV-2, the cause
of COVID-19, in non-healthcare settings. Additionally, this
memorandum provides updated guidance to protect OSHA enforcement
personnel.
The following summarizes OSHA's updated enforcement strategy for
reducing the risk of workplace transmissions of SARS-CoV-2:
- OSHA will continue to implement the U.S. Department
of Labor's (DOL) COVID-19Workplace Safety Plan to reduce the risk of
COVID-19 transmission to OSHA CSHOs during inspections,4 and recommend following current COVID-19
guidelines from the CDC.
- OSHA will continue using the revised NEP for
COVID-19, DIR 2021-03 (CPL 03), to prioritize
COVID-19-related inspections involving deaths or multiple
hospitalizations due to occupational exposures to SARS-CoV-2, to
conduct follow-up inspections, and to target high hazard
industries. In addition, the NEP focuses on ensuring that workers
are protected from retaliation.
- Enforcement of protections for healthcare and
healthcare support service workers in settings where people with
COVID-19 are expected to be present are covered under the ETS, 29
CFR §1910.502 and 29 CFR §1910.504. Inspection instructions for
entities covered by the ETS are outlined in DIR 2021-02 (CPL-02), issued on
June 28, 2021.
- This Updated Interim Enforcement Response Plan
outlines inspection procedures to enable CSHOs to identify
exposures to COVID-19-related hazards in non-healthcare settings,
and to ensure that appropriate control measures are implemented.
Worker protections in non-healthcare industries will be focused on
employees who are unvaccinated or not fully vaccinated, including
whether such employees are working indoors or outdoors.
- This memo instructs CSHOs on addressing violations
of OSHA standards (other than the ETS) and the General Duty Clause
in workplaces not covered by the COVID-19 ETS.
- When conducting inspections, the following apply:
- OSHA will perform onsite COVID-19 inspections, in
most cases.
- OSHA will, when appropriate, use phone and video
conferencing, in lieu of face-to-face employee interviews, to
reduce potential exposures to CSHOs. In instances where it is
necessary and safe to do so, in-person interviews will be
conducted.
- OSHA will minimize in-person meetings with
employers if necessary and encourage employers to provide documents
and other data electronically or by mail to CSHOs.
- Area Directors (AD) shall ensure that CSHOs are
prepared and equipped with the appropriate precautions and personal
protective equipment (PPE) when performing on-site inspections
related to COVID-19 and throughout the pandemic.
- To the extent possible, all inspections will be
conducted in a manner to achieve expeditious issuance of
COVID-19-related citations and abatement.
- In cases where on-site inspections cannot safely be
performed (e.g., if the only available CSHO has reported a medical
contraindication), the AD may approve remote-only inspections.
- Inspections conducted entirely remotely will be
documented and coded as N-10-COVID-19 REMOTE in the OSHA
Information System (OIS).
Note: CSHOs who believe they may have been
exposed to SARS-CoV-2 during an inspection must immediately report
the potential exposure to their supervisor and/or AD.
The Office of Occupational Medicine and Nursing
(OOMN) will assist ADs and CSHOs and serve as a liaison with
relevant public health authorities, the Office of the Assistant
Secretary for Administration and Management (OASAM) Office of
Worker Safety and Health, and the Office of the Solicitor,
following the reporting requirements in the DOL COVID-19 Workplace
Safety Plan. OOMN can also facilitate Medical Access Orders (MAOs),
which are necessary to obtain worker medical records or proof of
worker vaccination status from employers and healthcare
providers.
All enforcement and compliance assistance
activities must be appropriately coded to allow for tracking and
program review. This includes COVID-19 activity, which should
continue to be coded in OIS, in accordance with the revised
COVID-19 NEP, DIR 2021-03 (CPL 03).
Attached is specific inspection and citation guidance for
potentially applicable OSHA standards, regulations and the General
Duty Clause, including new guidance related to the COVID-19 NEP.
This guidance is being provided to the OSHA-approved State Plans
for informational purposes only. If you have any questions
regarding this policy, please contact the Office of Health
Enforcement at (202) 693-2190.
Attachments
Attachment 1
Specific Guidance for COVID-19 Enforcement
- Updated Guidance on Workplace Risk:
- To prioritize OSHA enforcement activities for the duration of the
COVID-19 pandemic, the following guidance is provided to help CSHOs
identify workplaces and job tasks with a risk-based potential for
COVID-19 exposures. The risk of worker exposures to SARS-CoV-2, the
virus that causes COVID-19, has evolved due to increased knowledge
about the virus, increased vaccination efforts and decreased
infection rates. Ongoing enforcement and outreach efforts from
OSHA, along with public health guidance and actions taken by other
Federal Agencies (e.g., the CDC and FDA) to control the COVID-19
pandemic have also contributed to better public understanding,
enhanced interventions, and improvements that have led to a
decrease in infection rates across the country.
-
Workplace exposures may depend on a variety of factors including:
the physical environment of the workplace; the type of work
activity; the health and/or vaccination status of the worker, the
ability of workers to wear face coverings and abide by current CDC
guidelines; and the need for close contact
(within 6 feet for a total of 15 minutes or more over a 24-hour
period) with other people, including those known to have or
suspected of having COVID-19, and those who may be infected and
transmit the virus unknowingly. Other factors, such as community
spread in local areas, employee activities outside of work, and
individual health conditions, may also affect workers' risk of
getting COVID-19 and/or developing complications from the illness.
OSHA and several public health agencies have issued recommendations to assist employers
in preparing their workplaces to minimize transmission of the
virus.
-
CDC's Interim Public Health Recommendations for Fully Vaccinated People provides that under most
circumstances, fully vaccinated people need not take all the same
precautions as unvaccinated people. For example, CDC advises that
most fully vaccinated people can resume activities without wearing
masks or physically distancing, except where required by federal,
state, local, tribal, or territorial laws, rules and regulations,
including local business and workplace guidance. People are
considered fully vaccinated for COVID-19 two weeks or more after
they have completed their final dose of a COVID-19 vaccine,
authorized under the Emergency Use Authorization by the U.S. Food
and Drug Administration in the United States. However, CDC suggests
that people who are fully vaccinated but still at-risk due to
immunocompromising conditions (i.e., at-risk
workers5) should discuss the need for additional
protections with their healthcare providers. For potential
exposures to unvaccinated workers or who are otherwise at-risk,
OSHA recommends implementing multiple layers of controls (e.g.,
implementing physical distancing, maintaining ventilation systems,
and properly using face coverings or personal protective equipment
(PPE) when appropriate).
-
The CDC continues to recommend precautions for certain workers who
have frequent close contact with other people,
e.g., workers in certain transportation settings,
and the risk to workers in healthcare industry sectors remain a
serious concern when those workers treat or care for individuals
who are suspected or confirmed with COVID-19.
- This Updated Interim Enforcement Response Plan outlines inspection
procedures to enable CSHOs to identify exposures to
COVID-19-related hazards in non-healthcare settings, and to ensure
that appropriate control measures are implemented. Inspections of
higher-risk workplaces that can be crowded or involve a high level
of interaction with people including, but not limited to, meat,
seafood or poultry processing plants, correctional and detention
facilities, laboratories, some manufacturing, and some high-volume
retail settings, are among those for which these instructions will
apply.
- On June 21, 2021, OSHA issued an Emergency Temporary Standard
(ETS) to address the risk of COVID-19 to healthcare and healthcare
associated workers in settings where people with COVID-19 are
expected to be present. OSHA will enforce protections for covered
healthcare entities under the ETS, 29 CFR §1910.502 and 29 CFR §1910.504. Inspection instructions for those covered by the ETS are
outlined in DIR 2021-02 (CPL-02), issued on
June 28, 2021.
- Complaints, Referrals, Rapid
Response Investigations (RRIs), and Programmed Inspections:
-
To protect the health and safety of workers from SARS-CoV-2, Area
Offices (AOs) will continue to prioritize inspections of
COVID-19-related fatalities, multiple hospitalizations, and other
unprogrammed activities alleging potential employee exposures to
COVID-19-related hazards. Enforcement of protections for workers in
non-healthcare industries will focus on unvaccinated or not fully
vaccinated workers, including whether such employees are working
indoors or outdoors. Additionally, OSHA will implement programmed
inspections targeting those non-healthcare industries where OSHA
has previously identified increased enforcement activity, and/or
establishments with elevated rates of respiratory illnesses in CY
2020, pursuant to the revised COVID-19 NEP, DIR 2021-03 (CPL 03). Complaint(s)
or referral(s) for any general industry, agriculture, maritime, or
construction operation alleging potential exposures to SARS-CoV-2
should be handled in accordance with the general procedures in the
OSHA Field Operations Manual (FOM) Chapter 9, Complaint and Referral Processing.
-
OSHA will perform on-site inspections for formal complaints,
hospitalizations, and fatalities, as outlined in the FOM. Where
appropriate, phone and video conferencing may be used instead of
face-to-face interviews and meetings, to reduce potential for CSHO
exposures.
- Per the COVID-19 NEP and the FOM, fatality
inspections related to COVID-19 will be given high priority
followed by other unprogrammed inspections alleging employee
exposure to COVID-19-related hazards. Except in cases where an
on-site inspection cannot be conducted safely, fatality inspections
will be conducted using either on-site inspections or a combination
of on-site and remote methods,
- Programmed inspections are to be conducted to meet
the NEP's goal of reducing worker exposures to SARS-CoV-2. Area
Offices (AOs) may schedule follow-up inspections related to
COVID-19 hazards to meet the NEP goals where unprogrammed
activities have decreased enough to allow them to do so.
- A non-COVID-related inspection should be expanded
to areas involving the hazard of occupational exposure to
SARS-CoV-2 when information/evidence gathered during the
inspection, or plain view observations, indicate deficiencies in
complying with OSHA requirements (e.g.,
employees working without adequate PPE in areas with high exposure
to COVID-19-related hazards).
- Sites selected for programmed inspections must be
inspected using either on-site or a combination of on-site and
remote methods.
- Formal complaints alleging hazardous work
conditions/activities where employees have a high frequency of close contact
exposures, e.g., complaints alleging
COVID-19-related hazards in workplaces with higher risk jobs,
should be investigated using either on-site inspections or a
combination of on-site and remote methods, except in cases where an
on-site inspection cannot be performed safely:
- Area Directors (ADs) may use discretion in limited
cases to notify employers of the alleged hazard(s) or violation(s)
by telephone, fax, email, or by letter, in lieu of an immediate
on-site presence.
- Other formal complaints alleging SARS-CoV-2
exposure, such as cases where employees are engaged in jobs with
lower potential for exposure to SARS-CoV-2 (e.g., workers who do not regularly have close
contact with others), may not warrant an on-site inspection, and
non-formal investigative procedures may be used to address the
alleged hazards.
- Non-formal complaints and employer referrals
related to SARS-CoV-2 exposures will be investigated using
non-formal inquiry processing, in accordance with the FOM, and
other established procedures (e.g., rapid
response investigations (RRI)). Refer to procedures in the OSHA Memorandum on RRIs, dated March 4, 2016, for further information on RRI investigations.
- In all phone/fax correspondences, AOs will direct
employers to publicly-available guidance documents on protective
measures, e.g., CDC's website and OSHA's COVID-19 webpage at Coronavirus Disease (COVID-19).
- Inadequate responses to a phone/fax investigation
should be considered justification for an on-site inspection in
accordance with the FOM. See Attachment 2 for a sample
letter for employers.
- Where an on-site inspection is warranted but cannot
be performed safely (e.g., if the only
available CSHO has reported a medical contraindication),6 AOs will document the unsafe site
condition(s) and, with AD approval, follow the alternate remote
inspection process. Remote-only inspections may be conducted with
AD's approval to assure that COVID-19-related hazards alleged in
complaints, referrals, fatality reports, etc., are expeditiously
investigated and abatement can be timely implemented (Pursuant to
the NEP, a number of these will be re-inspected as on-site
follow-ups)
- Entirely remote COVID-19 inspections must be coded
with the specific code, N-10-COVID-19 REMOTE
Note:the COVID-19 NEP includes guidance for follow-up
inspections, and ADs may include any prior remote-only inspection
for follow-up. - Where the AD determines resources are insufficient
to allow an on-site inspection, the Regional Administrator may
approve investigation of such cases through an RRI in order to
identify any hazards, provide abatement assistance, and confirm
abatement.
- Workers fearing consequences for requesting
inspections, complaining of exposure to SARS-CoV-2, or reporting
illnesses may be covered under one or more whistleblower statutes.
Inform them of their protections from retaliation and refer them to
the Whistleblower Protection Program for more
information on their rights under the Act, including how to file a
retaliation complaint. If the worker is alleging retaliation, the
AO must submit a referral to the Regional Whistleblower Protection
Program.
- OSHA will forward complaint information deemed
relevant to other federal, state, and local authorities with
concurrent interests.
- Inspection Scope, Scheduling, and Procedures:
- Inspection Planning and Compliance
Safety and Health Officer (CSHO) Training. The types of
facilities identified in Section I above as having job tasks with a
higher potential for COVID-19 exposures, i.e., crowded workplaces
or those involving high level of interaction with people, may be
identified for on-site inspections in response to COVID-19-related
complaints/referrals and employer-reported illnesses.
ADs or Assistant
ADs must continue using experienced CSHOs to perform
COVID-19-related inspections in workplaces with higher potential
for exposures, and must continue to ensure less experienced CSHOs
are paired with them to gain the required experience. For
additional AD or Assistant AD responsibilities regarding CSHOs
performing COVID-19-related inspections, see Protection of OSHA
Personnel section below.
In addition to on-the-job training, new CSHOs should be trained
through available course work, such as that offered by the OSHA
Training Institute (OTI), (e.g., OSHA #2341 -
Biohazards; OSHA #3360 - Healthcare, and archived webinars related
to COVID-19 (OTI #0158 - Interim Enforcement Response Plan; OTI
#0161 - SHMS CSHO Safety; OTI #0162 - NIOSH Protecting Workers; OTI
#0169 - National Emphasis Program Coronavirus Disease 2019
(COVID-19).
CSHOs must be made aware of factors that, according to the CDC, increase risk for developing
severe illness and complications from COVID-19. Note, however, that
absence of these risk factors does not eliminate one's risk of
severe illness and complications. These risk factors include (but
are not limited to):- Being 65 years of age or older;
- Being on immunosuppressive drug therapy or
otherwise being immunosuppressed;
- Having a history of smoking; or
- Having any of the following medical conditions:
cardiovascular disease, asthma or other pulmonary disease, renal
failure, liver disease, cancer, obesity, or diabetes.
Before initiating COVID-related inspections in non-healthcare
settings, CSHO's should consult and familiarize themselves with
OSHA's Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, dated June 10, 2021, including its Appendix: Measures Appropriate for Higher-Risk
Workplaces with Mixed-Vaccination Status Workers. The Protecting Workers document contains guidance on
SARS-CoV-2 exposure risks to workers who are unvaccinated or
otherwise at-risk and the appropriate steps employers should take
to prevent exposure and infection.
NOTE:Where inspections require coordination with
other federal agencies, such as the U.S Department of Agriculture
(USDA), or local and state health departments, AOs must contact the
regional or local offices of these agencies to determine their
potential involvement and coordinate efforts to maximize
efficiencies and maintain controls. Regional Offices should notify
the Office of Federal Agency Programs in the National Office, as
needed. - Inspection Procedures.
Inspection procedures in FOM Chapter 3 must be followed, except as modified below. CSHOs
should also consult relevant OSHA directives, appendices, and other
references cited in this instruction for further guidance.
- Opening Conference.
Inspections must be conducted in a manner that assures the safety
of CSHOs and all personnel they come in close contact within the
course of their inspections. CSHOs must observe all appropriate
precautions for physical distancing, PPE use, and hygiene. When on
site, unvaccinated, not fully vaccinated, or otherwise at-risk
CSHOs must take additional precautions, as necessary, such as
requesting to conduct opening conferences in a designated,
well-ventilated administrative area or outdoors, and always wearing
face coverings when indoors and any necessary PPE, including all
precautions in accordance with OSHA's guidance Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, June 10, 2021, to assure their own safety and
the safety of all personnel they come in contact with during the
inspection. Fully vaccinated CSHOs should continue to wear a
well-fitted mask in correctional or detention facilities, and
homeless shelters,7 including where their use is required by
the facility.
As appropriate, CSHOs should speak to the safety director, and/or
the person responsible for implementing COVID-19 protections or
occupational health hazard controls. Other individuals responsible
for providing records should also be included or interviewed early
in the inspection (e.g., facility
administrator, training director, facilities engineer, human
resources). Also, employee representatives, e.g., union officials, may accompany CSHOs during
the inspection (see also, FOM Chapter 3, which describes CSHO authority to ensure fair and
orderly inspections) using all appropriate COVID-19 safety
precautions as required for the facility.
NOTE: CSHOs should inform employers of the OSHA
Guidance, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, June 10, 2021, and/or other industry-specific
guidance deemed appropriate. - Program and Document Review.
All COVID-19-related inspections should include a review of the
employer's COVID-19 plan and related documents, and interviews with
employers and employees. CSHOs should make the following
assessments:
- Determine whether the employer has a written safety
and health plan that includes contingency planning for emergencies
and natural disasters, such as the current pandemic or a COVID-19
plan that includes preparedness, response, and control measures for
the SARS-CoV-2 virus. This is particularly important for large
facilities, business operations, and institutions. If this plan is
a part of another emergency preparedness plan, the review does not
need to be expanded to the entire emergency preparedness plan (i.e., a limited review addressing issues related
to exposure to SARS-CoV-2 would be adequate).
- Verify the existence and effectiveness of
procedures for determining vaccination status by reviewing relevant
proof or records, 8 particularly where an employer claims that
its workforce, including all sub-contracted or temporary workers
under its control (or all employees in well-defined portions of the
workplace),9 is fully vaccinated. If available, request
documentation that supports the employees' vaccination
status.
Note:Where an employer claims that it has not
provided or implemented controls (such as face coverings, physical
distancing, physical barriers, cleaning, etc.) because its
employees are fully vaccinated, it should have policies and
procedures in place to determine employees' vaccination status.
These policies and procedures may exist independently of any formal
written COVID-19 response; may be part of an HR (Human Resources)
portfolio; and may be accomplished in multiple ways, including, but
not limited to, a verbal instruction to employees; a staff meeting
discussing vaccination; a written staff memo or a change to
conditions of employment. CSHOs should verify the existence and
effectiveness of these procedures through employee and employer
interviews. - Interview a representative number of affected
employees on multiple shifts (where applicable) at the site
regarding their vaccination status and inquire whether they are
aware of any recent COVID-19 cases in the workplace.
Note:CSHOs should keep employees' responses
confidential by not associating their response on vaccination
status to personally identifiable information (e.g., employee
names) in the noted information. - Where an employer's workforce is fully vaccinated
and there is no reasonable expectation that any person with
suspected or confirmed COVID-19 will be present, request the
establishment's Injury and Illness Logs (OSHA 300 and OSHA 300A)
for calendar years 2020 and 2021 to identify work-related cases of
COVID-19.
- Document findings, discontinue the inspection, and
exit the facility if the employer's claim of complete workforce
vaccination (or full vaccination in a well-defined portion of the
workplace), and the absence of recent or active work-related
COVID-19 infections is verified. The inspection must be marked NO
INSPECTION (only if the inspection was
initiated as a programmed inspection. See
footnote).10
Note 1:Employers may choose to verbally ask the
employee and document their vaccination status, or may keep
photocopies of the vaccination card or may request that the
employee provide other evidence of vaccination such as a letter
from a physician or vaccination provider (e.g., retail pharmacy).
Depending on the nature of the evidence maintained by the employer
(e.g., photocopies of vaccination cards), CSHOs may need a Medical
Access Order (MAO) to verify vaccination status.
Note 2:CSHOs in need of an OOMN consultation are
encouraged to use the online OOMN consultation request form. Also,
for accessing medical records, CSHOs are encouraged to use the
online Medical Access Order Request Application. For assistance
with the above services, contact OOMN. Consider issuing a subpoena
for medical records to compel production of the records by
employers.
Note 3:Where employees cannot be vaccinated
because of, underlying medical conditions or decline vaccination
because of conscience-based objections (moral or religious), the
employer should provide reasonable accommodation to this subset of
employees so as to not expose unvaccinated or not fully vaccinated
employees to COVID-19 hazards: e.g., through telework, solitary
work, or implementation of controls only in an area exclusively
dedicated to unvaccinated employees. - If a written plan exists, review the plan and
assess whether there are any unaddressed COVID-19 hazard not
covered in the plan, e.g., when tasks or
processes create new or previously unidentified potential
exposures.
- Determine whether the employer has implemented
measures for unvaccinated or not fully vaccinated workers to
facilitate physical distancing (e.g., barriers
or administrative measures to encourage 6-foot distancing)11 and ensures the use of
face coverings by employees, customers and the public.12 Fully vaccinated workers
should continue to wear a well-fitted mask in healthcare settings,
correctional or detention facilities, and homeless shelters.13
Note 1:Certain controls (e.g., face coverings,
physical distancing, physical barriers, ventilation) may not be
necessary for employees who perform work outdoors. The employer may
also make appropriate adjustments to the plan to address workers
who perform work both indoors and outdoors.
Note 2:Exceptions to the need for facemasks may
occur in the following circumstances: (A) where a worker is alone
in a room; (B) where employees are eating and are separated at
least 6 feet apart or with barriers; (C) where workers wear
respirators; (D) when masks impede communication (e.g.,
communication with deaf or hearing impaired persons); (E) when
employees have medical contraindications; or (F) when the mask
creates a greater hazard. Where feasible, alternative measures,
such as use of a clear face shield should be used where masks are
needed but cannot be worn. - Review the facility's procedures for hazard
assessment and protocols for PPE use.
- In indoor workplace settings (including in
correctional and detention facilities), verify that the employer
has a plan and procedures for routine environmental cleaning, or
disinfection, if necessary.
Note:In most situations, regular cleaning (at
least once a day) of indoor spaces with products containing soap or
detergent is enough to sufficiently remove the virus that may be on
surfaces. However, where there has been a suspected or confirmed
case of COVID-19 within the last 24 hours, the space should be
cleaned AND disinfected." 14 - Determine whether the employer is following current
CDC-recommended public health guidance, and adhering to other
public health measures, as provided in CDC guidelines
- Review relevant information related to worker
exposure incident(s), such as the establishment's Injury and
Illness Logs (OSHA 300 and OSHA 300A) for calendar years 2020 and
2021, medical records, OSHA-required recordkeeping,15 and any other pertinent
information or documentation deemed appropriate by the CSHO. This
includes determining whether any employees have contracted
COVID-19, have been hospitalized as a result of COVID-19, or have
been placed on precautionary removal/isolation.
- Determine whether the employer is promptly removing
workers who have been COVID-19 positive, had a COVID-19 diagnosis,
suspected infection or reported symptoms. Employers do not have to
remove any employee who does not experience COVID-19 symptoms and
has: (1) been fully vaccinated against COVID-19 (i.e., more than 2 weeks or more following the
final dose), or (2) had COVID-19 and recovered within the past 3
months.16,17
- Review the respiratory protection program and any
modified respirator policies related to COVID-19.
- Review employee training records, including any
records of training related to COVID-19 exposure prevention or in
preparation for a pandemic, if available.
- Review documentation of efforts made by the
employer to obtain and provide appropriate and adequate supplies of
PPE.
- Walkaround. Based on
information from the program and document review and interviews,
CSHOs should determine what areas of a facility will be inspected
(e.g., kill floor, meat packing floor, locker
rooms; break rooms, assembly line in a manufacturing plant).
- Protection of OSHA Personnel. ADs
and Assistant Area Directors will ensure that CSHOs performing
COVID-19-related inspections are familiar with the most recent CDC
guidelines and OSHA's guidance, including general information, as
well as industry-specific information, and are trained as mentioned
ADM 04-00-003, OSHA Safety and Health Management
System (SHMS), including Chapter 8, Personal
Protective Equipment.18
The Agency and the Department have worked to facilitate
availability of COVID-19 vaccinations for CSHOs. Note that OSHA's
internal policies relative to CSHO protections during inspections
may be updated based on further updates to CDC guidance and
COVID-19 vaccination status. CSHOs should check OSHA's Safety and
Health Management System (SHMS) website on the intranet frequently,
for any SHMS updates on CSHO protections.
The AD must ensure that CSHOs evaluate potential sources of
exposure and minimize transmission risk during on-site inspections.
CSHOs should conduct a risk-level assessment for COVID-19, with
available industry, company, and any known task-related
information. The AD must ensure that a site-specific risk
assessment is complete and available for review prior to opening
the inspection. The site-specific risk assessment will include an
exposure control plan, job-hazard analysis, and PPE hazard
assessment.
ADs and Assistant Area Directors must ensure that CSHOs are also
equipped with appropriate respiratory protection (e.g., N95s, mask, elastomeric respirator) and
other appropriate PPE, e.g., goggles or face shields, disposable
gloves, and disposable gowns or coveralls of appropriate size,
especially when CSHOs expect to be in areas of higher potential
exposure during the inspection, or when required by the employer.
Necessary sanitation supplies for decontamination and hygiene
should also be provided to all CSHOs.
CSHOs must have met all other applicable requirements, per OSHA
Instruction, CPL 02-02-054, Respiratory Protection
Program Guidelines, July 14, 2000, at Respiratory Protection Program Guidelines, and OSHA
Instruction, ADM 04-00-003, OSHA Safety and Health
Management System, May 6, 2020, at OSHA Safety and Health Management System.
Respiratory Protection and Other PPE for
CSHOs.
CSHOs should protect themselves against all COVID-19 and
non-COVID-19 hazards during an inspection and must use appropriate
respiratory and other personal protective equipment, as necessary,
to protect themselves from those hazards. CSHOs must also ask
employers if there are any facility-imposed PPE requirements and
adhere to those PPE requirements (including use of face coverings)
during the inspection.
In cases where respirators are needed, the minimum levels of
respiratory protection for CSHOs are a fit-tested, half-mask,
elastomeric respirator with at least an N95-rated filter or a
fit-tested, NIOSH-approved, disposable, filtering facepiece
respirator (FFR), such as an N95, since they have an assigned
protection factor (APF) of 10.
Where suspected or confirmed COVID-19-positive workers may be
present, CSHOs must, at a minimum, wear an N95 FFR or a half-mask
negative-pressure respirator with at least an N95 filter, goggles,
and disposable gloves. If CSHOs wear full-face, negative- or
positive-pressure respirators, those respirators take the place of
goggles for the purposes of providing eye protection.
In cases where an FFR is being used, CSHOs should also have
available their elastomeric respirator with appropriate filters and
cartridges for any anticipated exposures during an inspection that
may not be adequately protected by an N95 FFR (e.g., any toxic gases/vapors or any particulates
where the maximum use concentration would exceed an APF of
10).
To protect Federal personnel and individuals interactive with the
Federal workforce, and to ensure the continuity of Government
services and activities, all on-duty or on-site Federal employees,
such as CSHOs, on Federal lands that are not fully
vaccinated are required to wear a face covering (i.e., cloth face coverings or surgical masks) and
maintain physical distance, and adhere to other public health
measures, as provided in CDC guidelines. This applies as well to
CSHOs performing on-duty activities outside of Federal buildings,
such as performing on-site inspections. This is in accordance with
Presidential Executive Order 13991 on Protecting the Federal Workforce and Requiring Mask Wearing, January 20, 2021, and the OMB
memorandum M-21-15, January 24, 2021, which gives OSHA the ability
to provide exceptions consistent with CDC guidelines.
As noted above, CSHOs should check OSHA's Safety
and Health Management System (SHMS) website on the intranet
frequently, for any SHMS updates on CSHO protections.
Safety Practices During On-Site
Inspections.
CSHOs should determine from the employer where donning, doffing,
and cleaning/hygiene activities can be performed, as well as where
additional facility-required PPE (if available) and waste disposal
facilities are located, in preparation for the walkaround.
CSHOs should inspect facilities in a manner that minimizes or
prevents risk of exposure (for example, view employee work tasks
through an observation window) and avoid potential exposure to
suspected or confirmed COVID-19-positive persons.
As appropriate, CSHOs must conduct private interviews with affected
employees in uncontaminated areas or remotely. CSHOs who are
unvaccinated, not fully vaccinated, or otherwise at-risk shall
practice physical distancing (maintaining at least 6-feet of
distance) and wear face coverings while conducting in-person
interviews with employees or other personnel. Another option is
conducting the interview by voice call, or video phone, even while
still on site.
CSHOs must continue to follow good hygiene practices and wash their
hands with soap and water after each inspection or use hand
sanitizers with at least 60% alcohol if handwashing facilities are
not immediately available. CSHOs should always wash their hands as
indicated above after removing gloves or other PPE. CSHOs are also
encouraged to wash their hands during the course of the walkaround,
such as when leaving areas and after touching surfaces. CSHOs
should practice contamination reduction techniques, i.e., limiting surface touching, and avoiding
secondary or subsequent contact, especially with their faces when
donning and doffing PPE or face coverings.
Also, prior to leaving the site, CSHOs will dispose of all used,
disposable PPE and hygiene waste on site, or bag and clean later.
Reusable PPE (e.g., elastomeric respirator
facepiece) and other equipment should be cleaned on-site or bagged
and cleaned later. - Applicable OSHA Requirements.
Several OSHA standards may apply, depending on the circumstances of
the case that documents exposure of unvaccinated or not fully
vaccinated workers to COVID-19-related hazards. CSHOs must rely on
the specific facts and findings of each case for determining
applicability of OSHA standards. The list of general industry
standards applicable to infectious diseases, such as COVID-19,
include the following (see also, corresponding
standards for other industries, as applicable to the inspection):
- 29 CFR Part 1904, Recording and Reporting
Occupational Injuries and Illness.
- 29 CFR §1910.132, General Requirements-Personal
Protective Equipment.
- 29 CFR §1910.134, Respiratory Protection.
- 29 CFR §1910.141, Sanitation.
- 29 CFR §1910.145, Specification for Accident
Prevention Signs and Tags.
- 29 CFR §1910.1020, Access to Employee Exposure and
Medical Records.
- Section 5(a)(1), General Duty Clause of the OSH
Act.
Note:OSHA's Bloodborne Pathogens (BBP) standard (29 CFR §1910.1030) applies to occupational exposure to human blood and
other potentially infectious materials that typically do not
include respiratory secretions that may contain SARS-CoV-2 (unless
visible blood is present). However, the provisions of the standard
offer a framework that may help control some sources of the virus,
including exposures to body fluids (e.g., respiratory
secretions) not covered by the standard. Additionally, the BBP
standard will apply to facilities where COVID-19 vaccinations are
being administered by employees covered by OSHA. - Observation of Hazards. Where
no violations of OSHA standards, regulations, or the general duty
clause are observed or documented, CSHOs must complete the
walkaround portions of the inspection and close the
inspection.
- Citation Guidance. The above
list of applicable standards is not exhaustive, and, depending on
the specific work task, setting, and exposure to other biological
or chemical agents, additional OSHA requirements may apply (e.g., 29 CFR §1910.133, 29 CFR §1910.138, 29 CFR
§1910.1200). Violations of OSHA standards cited under this
inspection guidance will normally be classified as serious.
- General Duty Clause. If
deficiencies not addressed by OSHA standards or regulations are
discovered in the employer's preparedness plan for controlling
occupational exposure risk for COVID-19, and guidance is available
(e.g., from CDC), follow the FOM guidance for
obtaining evidence of a potential general duty clause violation,
including the four required elements: (1) The employer failed to
keep the workplace free of a hazard to which employees of that
employer were exposed; (2) The hazard was recognized; (3) The
hazard was causing or was likely to cause death or serious physical
harm; and, (4) There was a feasible and useful method to correct
the hazard. Include information supporting findings that workers
who are unvaccinated or not fully vaccinated were exposed to a
recognized COVID-19-related hazard. Recommend feasible abatement
measures that would mitigate exposures to unvaccinated or not fully
vaccinated workers, including recommending that employers allow
employees to take time off to get vaccinated, as well as recover
from any potential side effects.
In cases where the evidence does not establish the presence of all four of the above elements, the AO should
issue a hazard alert letter (HAL) recommending the implementation
of protective measures that address SARS-CoV-2 hazards. For
example, if there is no evidence that an employee was potentially
exposed to the virus in the workplace, then the first element is
not met. See Attachment 3 for a sample HAL
to be used as a template for AOs to address to an employer (or a
Federal agency), and includes recommended steps to eliminate or
materially reduce worker exposure to COVID-19 hazards. Additional
example HALs are available on the OSHA intranet. - Use of CDC Recommendations.
Consult current CDC guidance to assess a potential workplace
COVID-19 hazard and to evaluate the adequacy of an employer's
protective measures for workers, including employees' vaccination
status. Where the protective measures implemented by an employer
are not as protective as those recommended by the CDC, the CSHO
should consider whether employees are exposed to a recognized
COVID-19 hazard and whether there are feasible means to abate
it.
- Citation Review. In all cases
where the AD determines that a condition exists warranting issuance
of a 5(a)(1) violation, or a notice of a violation of 29 CFR §1960.8(a) to a federal agency, for occupational exposure to
SARS-CoV-2, the proposed citation must be reviewed by the Regional
Administrator and the National Office prior toissuance. The
Regional Offices must also consult with their Regional Solicitor.
See Attachment 4 for a sample
alleged violation description (AVD). Additional internal resources
relating to COVID-19 are also available on the OSHA intranet.
Additionally, per the NEP, when COVID-19-related citations or HALs
are issued to an establishment for a corporation that has more than
one location engaged in the same or similar operations, CSHOs will
consult with the AD to send a letter to the corporate entity. The
letter should inform the company of the COVID-19 observed
hazard(s), provide a copy of the citations issued or HAL, and
recommend that the company conduct a hazard assessment and abate
any COVID-19 hazards in their other establishment(s). A sample
letter for this is included in the NEP, Appendix D.
- Additional Guidance for Certain
OSHA Standards.
- Access to employee
medical and exposure records. For general guidance, CSHOs
should refer to CPL 02-02-072, Rules of Agency
Practice and Procedure Concerning OSHA Access to Employee Medical
Records, August 22, 2007, at Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records. CSHOs are
encouraged to consult with OOMN for guidance if they have any
questions when reviewing medical records and for obtaining MAOs, as
necessary.
A record concerning an employee's work-related exposure to
SARS-CoV-2 is an employee exposure record under 29 CFR §1910.1020(c)(5). A record of COVID-19 medical test results, medical
evaluations, or medical treatment is considered an employee medical
record within the meaning of 29 CFR §1910.1020(c)(6). Medical
records are to be handled in accordance with the procedures set
forth at 29 CFR §1913.10, Rules of Agency Practice and Procedure
Concerning OSHA Access to Employee Medical Records. - Injury/Illness Records. CSHOs
should review the employer's injury and illness records to identify
any workers with recorded illnesses or symptoms associated with
exposure(s) to persons with suspected or confirmed COVID-19. As
indicated previously in this document, so as not to discourage
vaccination, OSHA will not enforce 29 CFR Part 1904's recording
requirements to require any employers to record worker side effects
from COVID-19 vaccination through May 2022. OSHA will reevaluate
its position at that time to determine the best course of action
moving forward.
For purposes of OSHA injury and illness recordkeeping, cases of
COVID-19 are not considered a common cold or
seasonal flu. The work-relatedness exception for the common cold or
flu at 29 CFR §1904.5(b)(2)(viii) does not apply to these cases.
Note that OSHA had been exercising enforcement discretion for the
recording of COVID-19 cases, in certain circumstances. As
transmission and prevention of COVID-19 infection have become
better understood, employers should have an increased ability to
determine whether an employee's COVID-19 illness is likely
work-related, e.g., if the employee, while on
the job, has frequent, close contact with the general public in a
locality with ongoing community transmission and there is no
alternative explanation.
Employers are responsible for recording cases of COVID-19 if all of
the following requirements are met:
- The case is a confirmed case of COVID-19, as
defined by the CDC;
- The case is work-related, as
defined by 29 CFR §1904.5; and
- The case involves one or more of the recording
criteria set forth in 29 CFR §1904.7 (e.g., medical treatment,
days away from work).
- Respiratory Protection Standard. For general
guidance, CSHOs should refer to CPL 02-00-158, Inspection Procedures for the Respiratory Protection
Standard, June 26, 2014, at Inspection Procedures for the Respiratory Protection Standard. During an inspection, CSHOs
will evaluate whether workers are using proper respiratory
protection, when its use is necessary.
- Equipment Shortages and Enforcement
Discretion. Where respirator supplies and services are readily
available, OSHA will cease to exercise enforcement discretion for
temporary noncompliance with the Respiratory Protection standard
based on employers' claims of supply shortages due to the COVID-19
pandemic.
- As supplies of health and safety equipment have
increased to meet the high demands of the peak stages of the
pandemic, respiratory protection equipment and supplies shortages
may no longer be a barrier to compliance. Accordingly, after
reviewing the guidance provided by the CDC, which indicates that
the supply and availability of NIOSH-approved respirators have
increased significantly and FDA recommendations for transitioning
away from some strategies used for FFR reuse in healthcare
associated industries (as noted earlier in this memo), OSHA is
rescinding its previous temporary enforcement discretion memoranda.
- Coding and Point of Contact.
All activity, specifically enforcement and compliance assistance,
will be appropriately coded in the OSHA Information System (OIS) to
allow for tracking and program review. As explained in the COVID-19
NEP, as of 3/12/2021, and as continuing in the revised NEP,
7/7/2021, all enforcement activities related to that Direction must
be coded with the specific NEP code, COVID-19. The additional codes
listed in the NEP must continue to be used for remote inspections,
and related event codes for violations and hazard alert letters
(HALs). Consult Table 1, List of OIS codes for
COVID-19-related inspections/activities, in the revised NEP, for a full list of OIS
codes.
If you have any questions regarding these procedures, please
contact the Office of Health Enforcement at (202)
693-2190.
Attachment 2
Sample Employer Letter for COVID-19 Complaint
Area Offices may use this sample letter for non-formal inquiry
processing of complaints and referrals, in accordance with the FOM,
and other established procedures (e.g., rapid
response investigations (RRI). The sample correspondence, below,
directs employers to publicly-available guidance documents on
protective measures, e.g., CDC's website and
OSHA's COVID-19 webpage. Bracketed and/or italicized comments are
for OSHA compliance use only and should be removed when
appropriately completed with the case-specific information.
RE: OSHA Complaint No. [ ]
Dear Employer:
On [Date], the Occupational Safety and Health Administration
(OSHA) received notification of alleged workplace hazard(s) at your
worksite concerning [Potential illness:an employee
exhibiting signs and symptoms of respiratory illness, such as,
fever, cough, and/or shortness of breath, possibly indicating
infection by SARS-CoV-2 (severe acute respiratory syndrome
coronavirus 2), which is the virus causing the current coronavirus
disease 2019 (COVID-19) pandemic.] or [PPE shortage:employees not provided with adequate personal
protective equipment (PPE), such as respiratory protection, gloves,
and gowns.] The specific nature of the complaint is as
follows:
<< ENTER COMPLAINT INFORMATION
>>
OSHA does not intend to conduct an on-site
inspection in response to the subject complaint at this time.
However, because allegations of violations and/or hazards have been
made, we request that you immediately investigate the alleged
conditions and make any necessary corrections or modifications.
Please advise me in writing, no later than [Date Response Due], of
the results of your investigation. You must provide supporting
documentation of your findings. This includes any applicable
measurements or monitoring results; photographs/video that you
believe would be helpful; and a description of any corrective
action you have taken or are in the process of taking, including
documentation of the corrected condition.
This letter is not a citation or a notification of proposed
penalty which, according to the Occupational Safety and Health Act,
may be issued only after an inspection or investigation of the
workplace. It is our goal to assure that hazards are promptly
identified and eliminated. Please take immediate corrective action
where needed. Depending on the specific circumstances at your
worksite, several OSHA requirements may apply to the alleged
hazards at your worksite, including:
- 29 CFR Part 1904, Recording and Reporting
Occupational Injuries and Illness.
- 29 CFR §1910.132, General Requirements - Personal
Protective Equipment.
- 29 CFR §1910.134, Respiratory Protection.
- 29 CFR §1910.141, Sanitation.
- 29 CFR §1910.145, Specification for Accident
Prevention Signs and Tags.
- 29 CFR §1910.1020, Access to Employee Exposure and
Medical Records.
- Section 5(a)(1), General Duty Clause of the OSH
Act.
OSHA's Bloodborne Pathogens standard (29 CFR §1910.1030) applies to occupational exposure to human blood and
other potentially infectious materials that typically do not
include respiratory secretions that may contain SARS-CoV-2 (unless
visible blood is present). However, the provisions of the standard
offer a framework that may help control some sources of the virus,
including exposures to body fluids (e.g., respiratory secretions) not covered by the
standard. This standard applies to facilities administering
vaccinations for COVID-19.
Information about these and other OSHA requirements can be found
on OSHA's website at Law and Regulation.
If we do not receive a response from you by [Date Response Due]
indicating that appropriate action has been taken or that no hazard
exists and why, an OSHA inspection may be conducted. An inspection
may include a review of the following: injury and illness records,
hazard communication, personal protective equipment, emergency
action or response, bloodborne pathogens, confined space entry,
lockout/tagout, and related safety and health issues. Please also
be aware that OSHA conducts random inspections to verify that
corrective actions asserted by the employer have actually been
taken.
OSHA's website, Occupational Safety and Health Administration, offers a wide range of safety and
health-related guidance in response to the needs of the working
public, both employers and employees. The following guidance may
help employers prevent and address workplace exposures to pathogens
that cause acute respiratory illnesses, including COVID-19 illness.
The guidance includes descriptions of the relevant hazards, how to
identify the hazards, and appropriate control measures. Additional
resources are provided that address these supply issues and contain
industry-specific guidance.
- For OSHA's latest information and guidance on the
COVID-19 pandemic, please refer to OSHA's COVID-19 Safety and
Health Topics Page, located at Coronavirus Disease (COVID-19).
- Protecting Workers: Guidance on Mitigating and
Preventing the Spread of COVID-19 in the Workplace, located at Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace
The Centers for Disease Control and Prevention (CDC) also
maintains a website that provides information for employers
concerned about COVID-19 infections in the workplace. The CDC has
provided specific guidance for businesses and employers at the
following CDC webpage, which is updated regularly: Workplaces and Businesses.
- For general information and guidance on the
COVID-19 pandemic, please refer to the CDC's main topic webpage at
COVID-19.
- Resources for businesses and employers, Workplaces and Businesses.
The CDC is recommending employers take the following steps to
prevent the spread of COVID-19:
- Plan for infectious disease outbreaks in the
workplace
- Assess workplace hazards and determine what controls
or PPE are needed for specific job duties
- Consider improving engineering controls, including
the building ventilation system
- Ensure employees wear face coverings in accordance with CDC and OSHA guidance, as well as
any state or local requirements
- Actively encourage sick employees to stay home
- Consider conducting daily in-person or virtual
health checks
- Accommodate employees through physical distancing
or telework
- Emphasize respiratory etiquette and hand hygiene by
all employees
- Perform routine environmental cleaning
You are requested to post a copy of this letter where it will be
readily accessible for review by all of your employees, and to
return a copy of the signed Certificate of Posting (attached) to
this office. In addition, you are requested to provide a copy of
this letter and your response to a representative of any recognized
employee union or safety committee that exist at your facility.
Failure to do this may result in an on-site inspection. The
complainant has been furnished a copy of this letter and will be
advised of your response. Section 11(c) of the Occupational Safety
and Health Act provides protection for employees against
retaliation because of their involvement in protected safety and
health related activity.
If you have questions regarding this issue, you may contact me
at the address in the letterhead. I appreciate your personal
support and interest in the safety and health of your
employees.
Sincerely,
Area Director
Attachment [Certificate of Posting not included in this sample
letter]
Attachment 3
Sample Hazard Alert Letter for a COVID-19 Inspection
NOTE: The letter below is an example of the type of letter that
may be appropriate in some circumstances. It must be adapted to the
specific circumstances noted in the relevant inspection. If the
employer has implemented, or is in the process of implementing,
efforts to address hazardous conditions, those efforts should be
recognized and encouraged, if appropriate. Bracketed and/or
italicized comments are for OSHA compliance use only and should be
removed when appropriately completed with the case-specific
information.
Dear Employer:
An inspection by the Occupational Safety and Health
Administration (OSHA) recently took place at your facility,
(facility name, location), on (date(s)).
OSHA has determined that conditions in your workplace do not, at
this time, constitute a violation of Section 5(a)(1) of the
Occupational Safety and Health Act (OSH Act). Section 5(a)(1) is
the general duty clause of the OSH Act. In addition, our
investigation did not identify a violation of any specific OSHA
regulation. [This last sentence would be deleted if
a 5(a)(2) citation is being issued.]
[NOTE: This sample letter may also be adapted
for sending to a Federal agency by changing the first sentence in
the above paragraph to read: OSHA has determined that conditions in
your workplace do not, at this time, constitute a violation of 29
CFR §1960.8(a). Section 1960.8(a) is the equivalent to the private
sector general duty clause of the OSH Act.]
Therefore, no citations[notices]will be
issued by OSHA at this time. However, during the course of our
inspection OSHA identified condition(s) that may expose workers to
COVID-19 hazards. OSHA's mission is to ensure that employers
provide a workplace free of preventable hazards, including COVID-19
hazards. Our concerns observed during this inspection are detailed
below and identify potential hazards that you should address.
[Include a general description of the working
conditions at issue and the nature of OSHA's concerns for potential
transmission of COVID-19. Address the lack of any of the OSHA
layers of control.]
The COVID-19 pandemic has affected each and every workplace in
the United States. The most effective measures to address workplace
COVID-19 hazards require the integration of multiple layers of
protection into your existing health and safety system.
We recommend you implement the steps found in the link below and
described in the following paragraph to eliminate or materially
reduce worker exposure to COVID-19 hazards in your workplace. We
know that workplace spread of COVID-19 remains a significant source
of the overall spread of the disease in our communities. OSHA draws
upon the science and experience of the Centers for Disease Control
and Prevention, the National Institute for Occupational Safety and
Health, and our own guidance as listed on the website below to
guide recommendations of the controls that should be instituted in
your workplace: Coronavirus Disease (COVID-19)
These resources should help guide you to better select PPE or
face coverings; to implement physical distancing between workers;
to provide guidance on cleaning and disinfecting; to inform you
about physical barriers if safe distances between workers cannot be
maintained; to inform you about improvements in ventilation for
your workplace; to assist you in identifying worker training to
make your system effective; and to inform you about vaccines and
health screening (testing). Our experience informs us that the most
important elements from these layered controls are physical
distancing between workers and PPE or face coverings for workers.19 Training workers about
the importance of COVID-19 controls, and their roles in
implementing those controls, is one of the best ways to ensure
their effective and consistent implementation. Proper
implementation of all of these cumulative controls, with emphasis
on distancing and PPE or face coverings, will improve your health
and safety system as it pertains to protecting your workers from
risk of contracting COVID-19 at work.
We request that you implement improvements to your health and
safety system, please also know that we stand ready to assist you.
You can contact OSHA's compliance assistance staff for help. You
can find more information about our compliance assistance at Compliance Assistance Specialists (CAS). General
compliance assistance resources for employers are available at Help for Employers.
In addition, the OSHA On-Site Consultation Program offers
no-cost and confidential occupational safety and health services to
small- and medium-sized businesses, with priority given to
high-hazard worksites. Consultants from state agencies or
universities work with employers to identify workplace hazards and
how to fix them, provide advice for compliance with OSHA standards,
train and educate workers, and assist in establishing and improving
safety and health programs. For more information or to locate the
OSHA On-Site Consultation program nearest you, visit https://www.osha.gov/consultation.
To evaluate your efforts in reducing these hazards, please send
me a letter detailing the actions you have taken, or plan to
institute, to address our concerns within 30 days of the date of
this correspondence. We will review your response and determine if
a follow up is needed to further evaluate your workplace, including
any recommended/implemented controls.
Under OSHA's current investigation procedures, we may visit your
work site within six months to examine the conditions noted above.
Enclosed is a list of available resources that may be of assistance
to you in preventing work-related injuries and illnesses in your
workplace.
Thank you in advance for your attention to these concerns.
Working together, we can move closer to achieving the goal of
workplaces free of preventable hazards. If you have any questions,
please feel free to call (name and phone number) at (address).
Sincerely,
Area Director
cc: (Fname Lname), local union representative (or worker
advocate designated representative)
(Fname Lname), Company owner, president, CEO, or corporate safety
representative [or Federal Designated Agency Safety
and Health Official (DASHO)]
Confidential Copy to: Complainant (if applicable)
Attachment 4
Sample Alleged Violation Description (AVD) for Citing the General
Duty Clause
This general alleged violation description (AVD) language below
is presented as an example to assist Compliance Safety and Health
Officers (CSHOs) in developing citations under the general duty
clause, Section 5(a)(1), of the Occupational Safety and Health
(OSH) Act. Citations should be drafted in consultation with the
Regional Solicitor to reflect specific conditions found at
establishments and to give notice to employers of the particular
hazardous condition or practice cited.
Section 5(a)(1) of the Occupational Safety and Health Act: The
employer did not furnish employment and a place of employment which
were free from recognized hazards that were causing or likely to
cause death or serious physical harm to employees, in that
employees were working in close proximity to each other and were
exposed to SARS-CoV-2 (severe acute respiratory syndrome
coronavirus 2), the cause of Coronavirus Disease 2019
(COVID-19).
(a) (LOCATION) (DATE) (IDENTIFY SPECIFIC OPERATION/TASK(S) AND
DEPARTMENTS, DESCRIBE CONDITIONS, INCLUDING EXPOSURE LEVELS) On or
about [Date], the employer did not develop and implement timely and
effective measures to mitigate the spread of SARS-CoV-2, the virus
that causes Coronavirus Disease 2019 (COVID-19). Employees working
[location/work station] worked in close
proximity to each other during the COVID-19 pandemic. These
conditions allowed the perpetuation of an outbreak of COVID-19 at
the facility. As of [Date], the employer had
[number] total positive tests out of
approximately [number] employees.
Recognized feasible and acceptable methods to abate this hazard
include, but are not limited to:
- The implementation of proactive social distancing
measures to ensure that employee(s) work activities such as, (SPECIFIC TASKS), allowed for at least a six-foot
distance between workers;
- Employees must be trained on how to maintain a safe
distance and the appropriate workplace protocols in place to
prevent and reduce exposure.
- The use of barriers between work stations, in
lunchrooms, in break areas, and in other common areas such as
classrooms or conference rooms;
- Employees must be trained on the need to continue
social distancing even when outside of their immediate work
areas/stations, the limitations of barriers, and the continued use
of PPE.
- The use of floor and work area demarcation to
identify and maintain six feet of separation between
employees.
- Encourage employees to get vaccinated, as
appropriate under applicable laws and/or labor management
contracts.
- The use of contact tracing to ensure that employees
who work near employees who have tested positive for COVID-19
and/or have developed symptoms of COVID-19, are informed, tested
and temporarily excluded from the facility and encouraged to
quarantine;20
- The use of face coverings and/or personal
protective equipment (such as faceshields) when employees are
unable to socially distance at least six feet from each other, if
workers are not all fully vaccinated.
- Employees must be trained on when to use PPE; what
PPE is necessary; how to properly put on, use, and take off PPE;
how to properly dispose of or disinfect, inspect for damage, and
maintain PPE; and the limitations of PPE.
- Providing a training program for all employees that
covers the symptoms of COVID-19 and methods of minimizing and/or
preventing exposure.
Guidance issued by CDC provide examples of feasible methods of
abating COVID-19 hazards that should be considered when drafting
citations. See OSHA's COVID-19 Control and Prevention website at:
Control and Prevention.
Note: COVID-19 inspections resulting in a
proposed 5(a)(1) citation are considered novel cases. The
Directorate of Enforcement Programs (DEP) and the Regional
Solicitor's Office must be notified of all such proposed citations
and federal agency Notices that relate to COVID-19
exposures.
[1]
OSHA Memorandum, Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19). March 12, 2021. Note that OSHA had also issued
two previous Enforcement Response Plans: On April 13, 2020, OSHA
issued an Interim Enforcement Response Plan for COVID-19 as a
first step at establishing an emphasis on very high- and high-risk
workplaces. Subsequently, OSHA issued the Updated Interim Enforcement Response Plan for
COVID-19 on May 19, 2020, which was followed by the update on March
12, 2021, noted at the beginning of this footnote.
[2]See: Strategies for Optimizing the Supply of N95 Respirators.
[3]See: FDA In Brief: FDA Revokes Emergency Use Authorizations for Certain Respirators and Decontamination Systems as Access to N95s Increases Nationwide.
[4]See: COVID-19 Workplace Safety Plan.
[5]
At-risk workers are those who have some conditions, such as a prior
transplant, as well as prolonged use of corticosteroids or other
immune-weakening medications, which may affect the workers' ability
to have a full immune response to vaccination. See the CDC's page describing Vaccines for People with Underlying Medical Conditions, further definition of People with Certain Medical Conditions, and OSHA guidance: Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace
[6]
CSHOs may voluntarily share information about their vaccination
status and/or medical contraindications, but are not required to
disclose such information.
[7]See: Interim Public Health Recommendations for Fully Vaccinated People
[8]
In order to make the determination of which workers are fully
vaccinated, employers could, for example, vaccinate their workforce
themselves; review CDC vaccination cards or similar verification
issued by a pharmacy, healthcare provider, or other vaccinator; if
available, review state-issued passes; or simply ask workers to
attest
whether they have been fully vaccinated. If the employer is not
able to determine that an employee is fully vaccinated, the
employer should treat that employee as not fully vaccinated.
[9] A
well-defined portion of the facility could be an entire department
or a section of a building (e.g., room, floor, wing). An area
previously exempt should be re-evaluated upon hiring of new,
unvaccinated employees. If a dedicated area of the workplace for
vaccinated employee population cannot be physically defined, then
the employer should have implemented all elements of the COVID-19
plan (if created) or elements of the health and safety plan that
address COVID-19.
[10] If the inspection was initiated by an
unprogrammed or follow-up activity or the establishment is targeted
under another NEP or LEP, then the CSHO should proceed with the
inspection to address additional items alleged or those covered by
another emphasis program. The CSHO should inform the employer of
their rights and responsibilities under Section 11(c) of the OSHA
Act. If the unprogrammed activity that initiated this inspection
includes an allegation of retaliation, the CSHO must refer this
allegation to the Regional Whistleblower Protection Program.
[11] In rare situations where both physical
distancing and physical barriers are not feasible, employers can
still implement the remaining layers of overlapping controls,
including face coverings, hand hygiene, and ventilation to reduce
the risk of COVID-19.
[12] Unvaccinated or not fully vaccinated employees
in workplace settings who work indoors around other individuals or
ride in a vehicle with another person for work purposes (this does
not include commuting) should use face coverings and other
appropriate PPE. (See: Interim Public Health Recommendations for Fully Vaccinated People) and Guidance for Unvaccinated People: Types of Masks).
[13]See: Interim Public Health Recommendations for Fully Vaccinated People.
[14]See: Cleaning and Disinfecting Your Facility. This CDC
guidance is indicated for cleaning and disinfecting buildings in
community settings to reduce the risk of spreading COVID-19. This
guidance is notintended for healthcare settings or for operators of
facilities such as food and agricultural production or processing
workplace settings, manufacturing workplace settings, or food
preparation and food service areas where specific regulations or
practices for cleaning and disinfection may apply.
[15] OSHA will not enforce 29 CFR Part 1904's
recording requirements to require any employers to record worker
side effects from COVID-19 vaccination through May 2022. OSHA will
reevaluate its position at that time to determine the best course
of action moving forward. See "Vaccine Related" FAQ at: Non-ETS Frequently Asked Questions.
[16] The symptoms of COVID-19 include: recent loss
of taste and/or smell with no other explanation; or fever (≥100.4°
F) and new unexplained cough associated with shortness of breath.
The symptoms OSHA has selected as requiring employee removal
constitute only a partial list of the symptoms that CDC has
recognized as symptoms of COVID-19. Employers may choose to go
beyond the symptoms designated by OSHA for employee removal and
remove employees who display additional symptoms from the CDC list
(such as chills, fatigue, or congestion; fever in the absence of
cough; or cough in the absence of fever) or refer those employees
to a healthcare provider.
[17] Although the risk that fully vaccinated people
could be infected with COVID-19 is low, any fully vaccinated worker
who experiences symptoms consistent with COVID-19 should be
isolated, be clinically evaluated for COVID-19, and tested for
SARS-CoV-2, if indicated. See: Interim Public Health Recommendations for Fully Vaccinated People.
[18]See:OSHA Safety and Health Management System.
[19] The CDC has determined that the risk for fully
vaccinated persons outside of healthcare settings is low enough to
justify foregoing other layers of controls for settings where all
persons are fully vaccinated and asymptomatic. However, fully
vaccinated persons should continue to wear a well-fitted mask in:
healthcare settings, correctional or detention facilities, and
homeless shelters. See: Interim Public Health Recommendations for Fully Vaccinated People.
[20] The CDC relaxed some recommendations for
individuals who are in community or public settings and fully
vaccinated with one of the three FDA authorized vaccines.
Quarantine is no longer required for fully
vaccinated individuals who remain asymptomatic following
exposure to a COVID-19 infected person. See: Interim Public Health Recommendations for Fully Vaccinated People
