OSHA issues compliance directive for enforcing emergency temporary standard to protect healthcare workers from coronavirus

First published by OSHA

WASHINGTON, DC – The U.S. Department of Labor’s Occupational Safety and Health Administration today issued a compliance directive designed to ensure uniform inspection and enforcement procedures for its Emergency Temporary Standard to protect healthcare workers from occupational exposures to COVID-19.

The new directive provides OSHA compliance safety and health officers with guidance and procedures on how to enforce the standard’s requirements for:

  • Written COVID-19 plan
  • Patient/Non-employee screening and management
  • Personal protective equipment
  • Aerosol-generating procedures
  • Physical distancing
  • Physical barriers
  • Cleaning and disinfecting
  • Ventilation
  • Employee health screening and medical management
  • Vaccination
  • Training
  • Anti-retaliation
  • Requirements at no cost
  • Recordkeeping
  • Reporting to OSHA

The ETS became effective June 21, 2021. Employers must comply with most provisions by July 6, 2021, and with training, ventilation, and barrier provisions by July 21, 2021.

Learn more about the COVID-19 Healthcare ETS.

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DOL OIG report on OSHA: More complaints, fewer inspections during COVID-19 pandemic

First published by Safety+Health an NSC publication.
OIG/OSHA logos -- jan72014

Washington — OSHA received 15% more complaints during the first nine months of the COVID-19 pandemic than it did during the same period in 2019 – but conducted 50% fewer inspections, according to a Department of Labor Office of Inspector General audit report released March 2.

DOL OIG reviewed complaint and inspection data from Feb. 1 to Oct. 26, 2020. OSHA received 23,447 complaints compared with 20,391 over the same span in 2019. The agency performed a little more than 13,000 inspections during that time in 2020 compared with 26,174 inspections over the same period in the previous year.

“As a result, there is an increased risk that OSHA is not providing the level of protection that workers need at various jobsites,” DOL OIG says.

Additionally, OSHA issued 295 COVID-19-related violations.

“With most OSHA inspections done remotely during the pandemic, workplace hazards may go unidentified and unabated longer, leaving employees vulnerable,” DOL OIG says. “OSHA’s onsite presence during inspections has historically resulted in timely mitigation efforts for at least a portion of the hazards identified.”

DOL OIG made four recommendations, including the consideration of an emergency temporary standard related to COVID-19. An Executive Order signed by President Joe Biden on Jan. 21 directed OSHA and the Mine Safety and Health Administration to consider such ETSs and, if determined to be necessary, issue them by March 15.

“Having an ETS could be of importance during the pandemic as enforceable criteria because under the OSH Act’s General Duty Clause, violations are rarely issued,” the report states, adding that in fiscal year 2019, OSHA issued 829 General Duty Clause violations compared with 62,229 violations for all other standards.

Only three of the 295 COVID-19-related violations fell under the General Duty Clause.

“According to OIG interviews, officials in area offices mostly agreed that having a standard, such as an ETS, would be useful during an inspection,” the report states.

DOL OIG also recommended OSHA:

  • Prioritize onsite inspections for high-risk employers during the pandemic.
  • Retroactively track remote inspections dating to Feb. 1, 2020. DOL OIG says OSHA previously didn’t track in its system whether an inspection was performed onsite or remotely.
  • “Compare remote inspections to onsite inspections and document analysis of the frequency and timeliness of inspectors in identifying and ensuring abatement of worksite hazards.”

In a response, OSHA Deputy Assistant Secretary Amanda Edens wrote that the agency agrees with and accepts each of the recommendations.

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OSHA’s actions during COVID-19 pandemic under review, DOL inspector general says

Photo: House Committee on Oversight and Reform

Washington — The Department of Labor Office of Inspector General is reviewing OSHA’s enforcement activities and guidance amid the COVID-19 pandemic, DOL Inspector General Scott Dahl indicated during a House Oversight and Reform Subcommittee virtual briefing June 1.

Acknowledging that he was “very surprised” that OSHA had, at the time the briefing took place, issued only one COVID-19-related citation out of the thousands of complaints it has received, Dahl – who announced June 2 that he is retiring as inspector general June 21 – said his office will look into what can be done to make the agency’s enforcement activities “more efficient and effective.”

During a May 28 hearing convened by the House Workforce Protections Subcommittee, acting OSHA administrator Loren Sweatt said the agency can take up to six months to complete an investigation into a complaint, resulting in lag time before seeing tangible results.

Dahl said he doesn’t believe the lone OSHA citation “took months,” adding, “I think it was recently issued after OSHA was informed of [a violation] on May 5.”

As part of Phase 1 of the office’s four-phase Pandemic Response Oversight Plan, DOL OIG also will look at the numerous OSHA guidance materials issued during the pandemic, with an initial report expected to be released at the end of the month, Assistant Inspector General Elliot Lewis said.

Lewis added that DOL OIG will look at OSHA’s inspection activity and is coordinating with the Department of Agriculture OIG on issues regarding meatpacking or meat processing plants – a notable hot spot of COVID-19 infections.

According to its semiannual report to Congress, released June 1, DOL OIG also will examine OSHA’s plans for future pandemics.

Phase 2 of the plan – which will “evaluate OSHA’s efforts to protect people on the front lines of this pandemic” (including doctors, nurses, emergency responders and other health care workers) – is expected to be completed in September. The completion of Phase 3, which will include examining the pandemic’s impact on OSHA’s inspections and investigations, is anticipated in September 2021, while the final phase is “ongoing.”

OSHA taking ‘good faith’ into account when issuing citations during COVID-19 pandemic

Washington — “Good-faith efforts” by employers to comply with worker safety regulations during the COVID-19 pandemic should be taken into “strong consideration,” OSHA states in an April 16 memo to area offices and compliance safety and health officers.

“The agency may issue a citation if it finds an employer cannot demonstrate any efforts to comply,” the agency states in a corresponding press release. “Once normal activities resume,” the agency will develop a program that looks at random samples of cases “where the agency noted, but did not cite, violations” to ensure corrective actions were taken.

OSHA notes that infection control measures, such as physical distancing, are limiting many employers’ ability to provide training, inspections, testing, auditing, and “other essential safety and industrial hygiene services.” Employees also have limited or no chance to participate in training or medical testing because of business closures and other restrictions.

The agency directs inspectors to evaluate whether an employer:

  • Explored all options to comply with applicable standards (e.g., use of virtual training or remote communication strategies)
  • Implemented interim alternative protections, such as engineering or administrative controls
  • Rescheduled required annual activity as quickly as possible

“Employers unable to comply with OSHA requirements because local authorities required the workplace to close should demonstrate a good-faith attempt to meet applicable requirements as soon as possible following the reopening of the workplace,” OSHA states.

The memo lists examples of situations in which area offices should consider enforcement discretion, including annual audiograms, hazardous waste operations training and construction crane operator certification.

“Where enforcement discretion is warranted, area offices will ensure that sufficient documentation (e.g., notes on the efforts the employer made to comply, letters or other documentation showing that providers had closed) is provided in the case file to support the decision,” the memo states.

Number of OSHA inspections at Trump-administration high, agency says

Photo: OSHA

Washington — OSHA conducted 33,401 inspections in fiscal year 2019 – the largest total during the Trump administration.

A Dec. 3 press release from the agency states that a record 1,392,611 workers were trained on safety and health requirements via the various education programs, and its free On-Site Consultation Program identified nearly 138,000 workplace hazards.

“OSHA’s efforts – rulemaking, enforcement, compliance assistance and training – are tools to accomplish our mission of safety and health for every worker,” Loren Sweatt, the agency’s acting administrator, said in the release. “I am proud of the diligent, hard work of all OSHA personnel who contributed to a memorable year of protecting our nation’s workers.”

The total number of inspections is the most since FY 2015, when 35,820 were conducted. The agency conducted 31,948 inspections the next fiscal year, then 32,408 in FY 2017 and 32,023 in FY 2018.

Between FY 2010 and FY 2012, OSHA conducted more than 40,000 inspections each fiscal year and more than 38,000 annually from FY 2003 to FY 2013.

One likely reason for the fewer number of inspections since that stretch is a dwindling number of OSHA inspectors, also known as compliance safety and health officers. The agency had a record-low 875 CSHOs as of Jan. 1, according to a National Employment Law Project data brief issued in March. In an April 3 congressional appropriations hearing, Rep. Rosa DeLauro (D-CT) pointed to a federal hiring freeze during the first year of President Donald Trump’s administration, as well as retirements and resignations, as factors.

To try to counteract that, the Department of Labor committed to adding 26 new full-time equivalent inspectors to the agency for FY 2019 after adding 76 CSHOs in FY 2018.

Then-Secretary of Labor R. Alexander Acosta testified during the April hearing that he expected inspections to increase once the new CSHOs were up to speed. In his written testimony for the hearing, Acosta acknowledged that it could take one to three years to get the inspectors working in the field unsupervised.

New OSHA video: The inspection process, procedures

Washington — OSHA has released a new video detailing its general inspection process and the reasons for inspections.

The five-minute video describes what occurs during each of the three phases of an OSHA inspection: opening conference, walkaround and closing conference.

Reasons for inspections include imminent danger situations, fatalities, hospitalizations, amputations or losses of an eye, worker complaints, referrals, targeted inspections aimed at certain high-hazard industries or individual workplaces, and follow-up inspections.

After an inspection, the compliance safety and health officer – or compliance officer – will share findings with the OSHA area director, who will determine whether to issue a citation. A covered establishment then has 15 days to respond to the citation. The employer’s response can include requesting an informal conference with the area director or contesting the citation.

The video also highlights the agency’s free On-Site Consultation Program for small and medium-sized employers and OSHA Training Institute Education Center training courses designed for workers, employers and managers.

“A safe workplace benefits everyone,” the video states. “OSHA uses both enforcement and compliance assistance to achieve this shared goal. Ensuring compliance with OSHA standards is an integral part of the agency’s mission to keep workers safe and healthy. That’s why OSHA is working to give employers the knowledge and tools they need to comply with their obligations and provide safety information to workers.”