With tensions somewhat high about the COVID-19 pandemic, OSHA has experienced quite an increase in the number of whistleblower complaints from workers. As a result, OSHA has published some enforcement guidance to their inspectors on how to handle these complaints.
OSHA complaints over the past few months have centered mostly on two issues. One, a lack of PPE such as respirators, gloves, gowns, etc. The other is on the lack of training a company may have given their employees on the standards and COVID in the workplace.
OSHA Puts Employers in One of 3 Risk Groups
These are medical-related facilities with a high risk of coming into contact with the virus. These could include hospitals, emergency rooms, medical centers, nursing homes, postmortem facilities, or labs.
These facilities have high contact with the general public or are densely staffed so that it would be difficult to maintain a 6 ft. distance. Facilities with contact with international travelers would also fall into this group. Some examples would be airports, high retail, schools, and any other business tightly crowded.
These facilities have little contact with the general public and don’t provide a lot of frequent close contact where it’s not a problem to maintain a 6 ft. distance.
Originally, only the High Risk category of facilities were planned for inspection unless something drastic happened in one of the other facilities, such as a COVID-related fatality. This is because the resources of OSHA are limited and there was a concern by OSHA to keep inspectors safe and healthy themselves.
However, there was backlash to this policy from union and industry groups, prompting OSHA to modify it to add the possibility of conducting inspections at other facilities. Starting May 26, 2020, inspections will be determined based on the following:
- In geographic areas experiencing sustained elevated community transmission or a resurgence in community transmission priority will be given to high risk facilities mentioned above. Priority will also be given to workplaces with high numbers of complaints or known COVID-19 cases.
- Where resources are not available, OSHA will initiate the inspection remotely with the understanding that an inspection will be conducted onsite when the resource becomes available.
- OSHA will develop a program to conduct monitoring inspections from a random sampling of fatality or imminent danger cases where inspections were not conducted because of low resources.
- Use non-formal/fax/rapid response investigation in industries where doing so can address the relevant hazard(s).
- In geographic areas where community spread of COVID-19 has significantly decreased:
- Fatalities and imminent danger exposures related to COVID-19 cases will be prioritized.
- OSHA will use non-formal/fax or rapid response investigations (send a letter) when possible to ensure effective use of resources, especially in medium and low risk facilities. However, it’s up to the Area Director’s discretion to conduct an onsite inspection in these cases.
What to Expect in an Investigation Letter
OSHA will inform you of the complaint that has been made, and it will be your company’s responsibility to:
- Investigate the complaint
Determine results and respond by a certain date
Provide backup documentation of your investigation
Provide corrective actions taken or to be taken
Provide backup documentation of corrective action
Post the letter
Sign a certificate that you posted the letter
If you do not respond to the letter, then you may get inspected. The employee who made the complaint, requesting OSHA do an inspection will receive a copy of OSHA’s letter to you and will be advised of your response.
For more details, check out the inspector enforcement memorandum on OSHA’s website.