Passing an OSHA Inspection During COVID-19

Even with so much uncertainty about COVID-19, your workplace needs to be ready if OSHA comes knocking.  You may never know when a compliance officer will show up and preparing for an OSHA inspection now will save you the headache (and possibly fines) later.

Compliance officer reviewing inspectionIn May, OSHA announced the Department of Labor adopted revised enforcement policies for the novel coronavirus, specifically regarding increased inspections and recordkeeping. The agency maintained it will utilize all enforcement tools that have been used before, but it’s important to remember OSHA can only issue fines for safety violations after an inspection and investigation is conducted.

When does OSHA inspect?

After focusing inspections in healthcare facilities, OSHA announced in May in-person inspections will be increased at all types of workplaces, including those in non-essential industries. In their effort to direct inspections resources to the most hazardous workplaces, OSHA prioritizes their inspections in the following order:

  • Imminent danger situations: During the pandemic, OSHA pledges fatalities and imminent danger exposures related to the coronavirus will be prioritized for inspections.
  • Severe injuries and illnesses: Under its revisions, coronavirus is a recordable illness, and employers are generally responsible for recording cases of COVID-19
  • Worker complaints: Allegations from employees of hazards or safety violations. As more and more people are heading back to work, OSHA is actually seeing an increase of employee complaints, which can result in a surprise inspection.
  • Referrals: Based on referrals from other federal or state agencies, individuals, organizations, or the media. According to OSHA data, referrals have increased almost tenfold.
  • Targeted inspections: High-hazard industries; Healthcare facilities, medical offices, emergency medical centers, etc.

For regions with state OSHA plans, you may refer to your local agency. The Michigan Occupational Safety and Health Administration, for instance, announced its plan to step up inspections in restaurants and bars, saying it will be making “inspections by referral or randomly at bars and restaurants, gas stations and convenience stores, grocery stores, and other retail establishments,” in a recent statement. For businesses without a sufficient COVID-19 preparedness and response plan, establishments in Michigan could face fines up to $7,000.

Passing the Inspection

The CSHO who will be conducting the inspection is familiar with the most recent guidance from the CDC and OSHA’s guidance for workers who may be exposed to COVID-19. Employers have the right to refuse entry to OSHA, but this just means the agency will be back with an inspection warrant—it’s generally best not to refuse entry.

Opening conferences should be held in a designated, uncontaminated area or outdoors, and it’s important to remember safe social distancing practices. Before beginning the walkaround portion of the inspection, the CSHO will review safety programs and documents, specifically determining whether or not a pandemic plan has been written up per CDC recommendations. Documents you should have available for the inspector include hazard assessments, PPE protocols, relevant medical records, respirator procedure and policies, and training records.

It’s encouraged to accompany the inspector as much as possible, asking questions and taking notes throughout the tour. The inspector will focus on areas mentioned in complaints and most inspectors will take photos or videos to document anything that may look like a violation. OSHA has the authority to interview a reasonable number of employees, interviewing staff either individually or as a group. The compliance officer will try to minimize work interruptions and the inspection ends with a closing conference to discuss findings and possible courses of action the employer can take.

OSHA will issue citations within 6 months and a deadline employer must meet to correct hazards. If you have the option to have an informal conference with OSHA, the agency may be able to review your violations and negotiate with them. This can lead to the inspector re-categorizing the violation in a less severe category, effectively reducing the cost of penalties.

Good Faith Efforts

OSHA said in an April notice they will exercise enforcement discretion and consider “good faith” efforts. Given the public health crisis, the agency acknowledges it can be difficult to met full compliance with regulations. It’s beneficial for employers to consider any interim or temporary protections, like engineering or administrative controls, if hazards cannot be addressed right away. In situations where compliance is not possible or feasible, the CSHO will use their discretion when determining whether to cite a violation, taking good faith efforts into strong consideration.

Moving forward, OSHA may still decide to adopt an emergency temporary standard that specifically addresses COVID-19. Employers should be prepared to quickly respond by having an emergency plan in place and a dedicated individual or team responsible for staying up to date on regulations. Whether or not coronavirus is what triggers an OSHA inspection, being prepared will keep your workplace safe and your stress down.

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