By Vin Gurrieri

Law360 (April 14, 2020, 7:34 PM EDT ) The Occupational Safety and Health Administration has issued a temporary enforcement plan to guide field offices dealing with coronavirus-related workplace safety incidents, saying it gives compliance officials the "flexibility and discretion" they need to protect workers amid the pandemic.

OSHA, a subagency within the U.S. Department of Labor, issued an "interim enforcement response plan" Monday directing OSHA field offices and compliance safety and health officers, or CSHOs, to be judicious in their use of in-person worksite inspections when they investigate workplace safety complaints or reports of severe illnesses that may have been caused by the virus while the public health emergency is ongoing.

CSHOs should also be trained in how to identify workers who are likely to have COVID-19, and they must be provided with personal protective equipment and decontamination products, according to OSHA's guidance.

In a statement announcing the interim guidance, the agency described it as offering "procedures that allow flexibility and discretion for field offices to maximize OSHA's impact in securing safe workplaces in this evolving environment."

"Today's guidance outlines commonsense procedures for investigating complaints related to the coronavirus while also ensuring the safety of workers, employers and inspectors," Loren Sweatt, OSHA's principal deputy assistant secretary, said in a statement. "OSHA is committed to protecting the health and safety of America's workers during this challenging time in our nation's history."

The response plan takes effect right away and will stay in place "until further notice," according to the DOL, which said the aim is for it to be "time-limited" to the current crisis.

U.S. Rep. Bobby Scott, D-Va., chair of the House Education and Labor Committee, issued a lengthy statement Tuesday saying that OSHA's guidance falls short of what is needed to keep workplaces safe.

He also assailed the DOL for its "failure to take urgent action" to protect health care workers and employees in other "essential" businesses, like food delivery and grocery workers, from becoming infected with COVID-19.

"The Department of Labor's new enforcement directive takes a step in the right direction by acknowledging that there is an important role for OSHA in enforcing strong worker protections," Scott said. "Unfortunately, it fails to cover other essential workers who are also at serious risk and fails to give employers and workers specific requirements for an infection control plan and other safety measures that an enforceable OSHA standard would provide."

The enforcement plan is largely an amalgamation of recent COVID-19 guidance documents that OSHA has issued, with the aim being to direct field staff on how to enforce workplace safety and health standards. It also references guidance that other agencies have recently issued related to COVID-19.

Among other things, the enforcement plan contains instructions for how regional offices and CSHOs can assess the COVID-19 risk level of a particular workplace to determine if it should be pushed to the top of the enforcement priority list and what types of precautions need to be taken for any inspections of those sites that may need to be done.

"Fatalities and imminent danger exposures related to COVID-19 will be prioritized for inspections, with particular attention given to health care organizations and first responders," OSHA said in its guidance.

If such an on-site visit is conducted, OSHA's guidance instructed area directors to assess whether an in-person visit is even necessary. If so, CSHOs must pay extra attention to possible hazards and "limit any possible exposures," including by relying heavily on electronic communications like phone interviews and videoconferences.

When enforcing respiratory protection standards, OSHA said that compliance officers should consider the shortage of protective equipment, such as masks and respirators, that the country is experiencing amid the outbreak. The agency said that CSHOs "should assess whether the employer is making a good-faith effort to provide and ensure workers use the most appropriate respiratory protection available" for exposure to COVID-19, and laid out the criteria for what constitutes a "good-faith effort" on the part of employers.

While OSHA warned that health care workers who directly care for confirmed or suspected COVID-19 patients must have "appropriate respiratory protection," it said compliance officers should exercise "enforcement discretion" when assessing potential violations of respiratory standards and evaluate situations on a case-by-case basis.

Scott, for one, argued Tuesday that shortcomings in OSHA's new enforcement directive may force Congress' hand since they reveal a "need for an emergency temporary standard that would clearly define employer responsibility and accountability" to maintain a safe work environment.

"If the Department of Labor will not voluntarily fulfill its responsibility to workers, Congress must pass legislation that forces the department to issue an emergency temporary standard that provides clear and enforceable protections for health care workers and other essential workers," Scott said.

Elsewhere in Monday's enforcement plan, OSHA reinforced its criteria for when employers are responsible for recording COVID-19 cases that was laid out in an enforcement guidance Friday.

Businesses must record a COVID-19 case when it hits each of three prongs: A worker has a confirmed COVID-19 infection as defined by the Centers for Disease Control and Prevention, the case is "work-related" as defined by DOL regulations, and the case involves at least one recording criteria that the DOL has previously established through regulation, according to OSHA.

However, OSHA said it won't enforce its record-keeping requirements to make employers that are not hospitals, employers of first responders or correctional facilities conduct a "work-related" analysis unless "objective evidence" exists that a COVID-19 case may be work-related, and the employer had that evidence "reasonably available," according to the Friday guidance.

Ashley Brightwell, a partner at Alston & Bird LLP, told Law360 on Tuesday that OSHA's guidance is beneficial given that many employers "are concerned about making that work-relatedness determination."

"It's obviously very difficult to determine with any degree of certainty where an employee may have contracted the virus," she said, adding that OSHA's guidance "has taken some of that difficulty away."

"I think, as OSHA stated in putting out the directive, the purpose is OSHA really wants employers to focus on implementing good hygiene practices and doing whatever employers can do to make sure their workforce is safe as opposed to spending time trying to figure out whether or not they need to record an illness as work-related," Brightwell said.

--Editing by Aaron Pelc.

Correction: A previous version of this story misstated how OSHA will apply its enforcement discretion. The error has been corrected.

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