COVID-19: Increased Worksite Complaints and Reduced OSHA Inspections Leave U.S. Workers' Safety at Increased Risk
Summary
A U.S. Department of Labor Office of Inspector General audit report to the Occupational Safety and Health Administration, Report Number 19-21-003-10-105, issued February 25, 2021, on increased worksite complaints and reduced OSHA inspections during COVID-19. The OIG found that OSHA took a series of actions and issued guidance in response to the pandemic, but that increased complaints, reduced inspections and most inspections not being conducted onsite subject employees to greater safety risk. It reports that compared with a similar period in 2019, OSHA received 15 percent more complaints in 2020 but performed 50 percent fewer inspections, and that OSHA issued 295 violations for 176 COVID-19 related inspections.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
REPORT TO THE OCCUPATIONAL
SAFETY AND HEALTH
ADMINISTRATION
COVID-19: INCREASED WORKSITE
COMPLAINTS AND REDUCED OSHA
INSPECTIONS LEAVE U.S. WORKERS’
SAFETY AT INCREASED RISK
DATE ISSUED: FEBRUARY 25, 2021
REPORT NUMBER: 19-21-003-10-105
U.S. Department of Labor WHAT OIG FOUND
Office of Inspector General
Audit OSHA has taken a series of actions to address
its challenges and has issued guidance in
response to the pandemic. However, increased
complaints, reduced inspections, and most
BRIEFLY… inspections not being conducted onsite subject
employees to greater safety risk.
Since the start of the pandemic, OSHA has
received a sudden influx of complaints, and as
COVID-19: INCREASED WORKSITE
a means of reducing person-to-person contact,
COMPLAINTS AND REDUCED OSHA
has reduced the number of its inspections,
INSPECTIONS LEAVE U.S. WORKERS’
particularly onsite inspections. Compared to a
SAFETY AT INCREASED RISK
similar period in 2019, OSHA received
15 percent more complaints in 2020, but
February 25, 2021
performed 50 percent fewer inspections. As a
result, there is an increased risk that OSHA is
WHY OIG CONDUCTED THE AUDIT
not providing the level of protection that workers
need at various job sites. During the pandemic,
The COVID-19 pandemic has raised specific
OSHA issued 295 violations for 176 COVID-19
concerns about the health and safety of
related inspections, while 1,679 violations for
workers and the measures OSHA has taken to
756 COVID-19 related inspections were issued
ensure employers are mitigating employees’
risk of exposure to the virus at workplaces. under State Plans.
With most OSHA inspections done remotely
Due to the pandemic, OSHA has received a
during the pandemic, workplace hazards may
surge of complaints in a matter of months, while
go unidentified and unabated longer, leaving
garnering the attention of Congress, labor
unions, and media with requests to act swiftly employees vulnerable. OSHA’s onsite presence
during inspections has historically resulted in
on behalf of the 130 million workers at more
timely mitigation efforts for at least a portion of
than 8 million worksites nationwide whom
the hazards identified. Specifically, a 2017 OIG
OSHA is responsible for protecting.
report noted that for approximately one third of
OSHA-issued citations reviewed, employers
WHAT OIG DID
abated the hazard during the inspection or
within 24 hours of OSHA identifying the hazard.
We conducted this audit to answer the following
question:
While OSHA has issued several guidance
documents to enhance safety provisions during
What plans and guidance has OSHA
developed to address challenges created by the pandemic, guidance is not enforceable like
rules or standards would be, and OSHA has not
COVID-19, and to what extent have these
issued an emergency temporary standard
challenges affected OSHA’s ability to protect
during the pandemic for airborne infectious
the safety of workers and its workforce?
diseases that may better protect employees’
health and safety at worksites.
To answer this question, we reviewed
guidance, public laws, and state standards;
conducted interviews; and researched WHAT OIG RECOMMENDED
complaint and enforcement data.
We made recommendations to OSHA regarding
onsite inspection strategies, remote inspection
READ THE FULL REPORT
http://www.oig.dol.gov/public/reports/oa/2021/1 guidance, and an emergency temporary standard
for infectious diseases. OSHA agreed with all our
9-21-003-10-105.pdf
recommendations.
U.S. Department of Labor – Office of Inspector General
TABLE OF CONTENTS
INSPECTOR GENERAL’S REPORT .................................................................... 1
RESULTS ............................................................................................................. 2
REDUCED INSPECTIONS DURING PANDEMIC SUBJECT
EMPLOYEES TO GREATER SAFETY RISK............................................. 3
MOST INSPECTIONS HAVE NOT BEEN CONDUCTED ONSITE
DURING THE PANDEMIC ......................................................................... 8
OSHA HAS CONTINUED TO ISSUE COVID-19 RELATED
GUIDANCE, BUT GUIDANCE IS NOT ENFORCEABLE ......................... 10
OSHA NEEDS TO ISSUE STRONGER GUIDANCE TO ITS STAFF
TO PRIORITIZE RESOURCES BASED ON HIGH-RISK
EMPLOYERS ........................................................................................... 15
OIG’S RECOMMENDATIONS ............................................................................ 16
Summary of OSHA’s Response ............................................................... 16
EXHIBIT 1: COVID-19 FEDERAL AND STATE PLAN VIOLATIONS ................. 18
EXHIBIT 2: OSHA COVID-19 EMPLOYER GUIDANCE..................................... 20
EXHIBIT 3: OSHA COVID-19 CSHO GUIDANCE .............................................. 22
APPENDIX A: SCOPE, METHODOLOGY, & CRITERIA .................................... 23
APPENDIX B: AGENCY’S RESPONSE TO THE REPORT ............................... 26
APPENDIX C: ACKNOWLEDGEMENTS ........................................................... 28
-i-
U.S. Department of Labor Office of Inspector General
Washington, D.C. 20210
INSPECTOR GENERAL’S REPORT
Amanda Edens
Deputy Assistant Secretary
for Occupational Safety and Health
U.S. Department of Labor
200 Constitution Ave, NW
Washington, DC 20210
This report presents the results of the Office of Inspector General’s (OIG) audit of
the Occupational Safety and Health Administration’s (OSHA) COVID-19
response. Due to the COVID-19 pandemic, the President declared a national
emergency on March 13, 2020. As of January 14, 2021, the Centers for Disease
Control and Prevention (CDC) reported approximately 23 million confirmed
COVID-19 cases and more than 383,000 COVID-19 related deaths in the United
States.
The pandemic has raised concerns regarding the safety and health of the
workforce, especially as OSHA has received a significant upswing in complaints.
OSHA has been facing considerable pressure from Congress, labor unions, and
the media to do more to protect workers from exposure to COVID-19.
The Occupational Safety and Health Act of 1970 (OSH Act) was enacted to
assure safe and healthful working conditions for all working people by:
authorizing enforcement of the standards developed under the OSH Act;
assisting and encouraging states in their efforts to assure safe and healthful
working conditions; and providing research, information, education, and training
in the field of occupational safety and health. OSHA is responsible for the safety
and health of 130 million workers employed at more than 8 million worksites
nationwide.
OSHA’S COVID-19 GUIDANCE
-1- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
We conducted this audit to answer the following question:
What plans and guidance has OSHA developed to address
challenges created by COVID-19, and to what extent have these
challenges affected OSHA’s ability to protect the safety of workers
and its workforce?
To answer this question, we interviewed OSHA national and area office officials,
and reviewed OSHA guidance, public laws, and states’ standards related to
COVID-19. We also researched OSHA’s COVID-19 complaint and enforcement
data.
We found OSHA has taken a series of actions to address its challenges and has
issued guidance in response to the pandemic. However, increased complaints
and reduced and remote inspections leave U.S. workers’ safety at increased risk.
RESULTS
Between February 1, 2020, and October 26, 2020, OSHA received 15 percent
more complaints and performed 50 percent fewer inspections than during a
similar period in 2019. Due to the increase in complaints, reduction in
inspections, and most inspections not being conducted onsite, there is an
increased risk that OSHA has not been providing the level of protection that
workers need at various job sites. Moreover, OSHA issued 295 violations for 176
COVID-19 related inspections, while 1,679 violations for 756 COVID-19 related
inspections were issued under State Plans. 1
We are concerned that since most OSHA inspections were done remotely during
the pandemic, hazards may go unidentified and unabated longer, with employees
being more vulnerable to hazardous risk exposure while working.
1
State Plans are OSHA-approved workplace safety and health programs operated by individual
states or U.S. territories. There are currently 22 State Plans covering both private sector and
state and local government workers, and there are six State Plans covering only state and local
government workers. Monitored by OSHA, State Plans must be at least as effective as OSHA in
protecting workers and in preventing work-related injuries, illnesses, and deaths.
2
A complaint is a notice of an alleged safety or health hazard made by a current employee or a
representative of employees. A referral is an allegation of a workplace hazard or violation
received from an OSHA Compliance Safety and Health Officer, safety and health agency (such
as the National Institute for Occupational Safety and Health), discrimination or whistleblower
complaint, other government agency, media report or employee/employer representative report of
accidents other than fatalities and catastrophes.
OSHA’S COVID-19 GUIDANCE
-2- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
Furthermore, while OSHA continues to issue guidance, guidance does not create
legal obligations for employers. OSHA has not issued an emergency temporary
standard (ETS), but needs to take more action to determine if one is necessary.
REDUCED INSPECTIONS DURING PANDEMIC
SUBJECT EMPLOYEES TO GREATER
SAFETY RISK
OSHA’s ability to respond to complaints has been limited due to restrictions of
onsite inspections and business travel adopted as a means of reducing person-
to-person contact. Since February 1, 2020, OSHA has received 11,041 COVID-
19 complaints or referrals 2 and performed 1,133 COVID-19 related inspections.
According to data provided by OSHA, total 2020 complaints (COVID-19 and non-
COVID-19) increased by 15 percent, 3 while total 2020 inspections (COVID-19
and non-COVID-19) decreased by 50 percent compared to 2019. 4 OSHA issued
295 violations for 176 COVID-19 related inspections, while 1,679 violations for
756 COVID-19 related inspections were issued under State Plans.
Given the increase in complaints, OSHA’s reduction in total inspections, and its
significant reduction in onsite inspections, there is an increased risk that OSHA
has not been providing the level of protection that workers need at various job
sites. Even though the Wisconsin Paper Council, which represents the
papermaking industry, commended OSHA for its efforts to issue guidance to
keep workers safe, labor organizations representing higher risk industries, such
as healthcare, meat processing, transportation, and other essential industries,
have been concerned that OSHA has not been providing the level of protection
workers need. While remote inspections might help mitigate potential
transmission of COVID-19, a reduction in onsite inspections could result in more
worksite accidents, injuries, deaths, or employee illnesses.
2
A complaint is a notice of an alleged safety or health hazard made by a current employee or a
representative of employees. A referral is an allegation of a workplace hazard or violation
received from an OSHA Compliance Safety and Health Officer, safety and health agency (such
as the National Institute for Occupational Safety and Health), discrimination or whistleblower
complaint, other government agency, media report or employee/employer representative report of
accidents other than fatalities and catastrophes.
3
From February 1, 2020, through October 26, 2020, OSHA received 23,447 complaints, which
was 3,056 more than during the same period in 2019, and a 15 percent increase.
4
From February 1, 2020, through October 26, 2020, OSHA performed 13,010 inspections, which
was 13,164 less than during the same period in 2019, and a 50 percent decrease.
OSHA’S COVID-19 GUIDANCE
-3- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
INCREASE IN COVID-19 COMPLAINTS/REFERRALS
AND REDUCTION IN INSPECTIONS
In 2020, OSHA received 15 percent more complaints than during a similar period
in 2019, but performed 50 percent fewer inspections, as shown in Figure 1.
Figure 1: Comparison of Complaints and
Inspections Between 2019 and 2020
28,000
26,174
26,000 (Feb. 1 - Oct. 26, 2019)
24,000
23,447
22,000 (Feb. 1 - Oct 26, 2020)
20,391
20,000
(Feb. 1 - Oct. 26, 2019)
18,000
16,000
(Feb. 1 - Oct. 26, 2020)
14,000 13,010
12,000
Complaints Inspections
Source: OSHA Complaint Inspection Data (unaudited) provided by OSHA
From February 1, 2020, to October 26, 2020, OSHA received 9,741 COVID-19
complaints and 1,300 referrals. 5 Thirty-five percent, or 3,460 complaints, were
received from 2 industry sectors: healthcare (2,363) and retail trade (1,097). The
healthcare industry alone, comprised of ambulatory services, hospitals, nursing
homes, and residential care facilities, accounted for 24 percent of all COVID-19
related complaints. For details, see Table 1 below.
5
OSHA’s webpage did not provide number of referrals by selected essential industry.
OSHA’S COVID-19 GUIDANCE
-4- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
Table 1: Industries with Highest COVID-19 Complaints
Percentage
Number of
Industry of
Complaints
Complaints
Healthcare 2,363 24%
Retail Trade 1,097 11%
Restaurants and Other Eating
571 6%
Places
Construction 297 3%
General Warehousing and
186 2%
Storage
Automotive Repair 73 1%
Other 5,154 53%
9,741 100%
Source: Data reported in OSHA’s COVID-19 Response Summary webpage (unaudited)
At the same time, COVID-19 has resulted in a significant reduction in inspections
and an increase in non-formal complaint investigations. An investigation of a
non-formal complaint occurs when a complaint does not meet certain criteria
warranting an onsite inspection. In this situation, OSHA calls the employer,
describes the alleged hazard(s), and then follows up with a fax, email, or letter to
address the relevant hazard(s).
According to OSHA officials, to prevent the spread of COVID-19 and to ensure
continued, effective use of resources during the pandemic, most onsite
programmed inspections 6 were suspended, and Compliance Safety and Health
Officers (CSHO) switched from onsite inspections to mostly remote inspections
via telephone, video conference, or email. However, in its data system, OSHA
did not track if inspections were performed onsite or remotely. It is important to
track remote inspections to determine their frequency and timeliness for
identifying and ensuring abatement of worksite hazards. As a result of our audit,
OSHA started coding remote COVID-19 inspections retroactive to February 1,
2020.
6
Programmed inspections focus OSHA’s enforcement resources towards the industries and
operations where known hazards exist (e.g., combustible dusts, chemical processing,
ship-breaking, falls in construction).
OSHA’S COVID-19 GUIDANCE
-5- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
As of October 26, 2020, OSHA had performed a total of 1,133 COVID-19 related
inspections, 682 for fatality and 451 for COVID-19 complaints and referrals.
Inspections initiated from COVID-19 complaints and referrals accounted for
4 percent of the 11,041 total COVID-19 complaints and referrals. For each
region, the percentage of inspections resulting from complaints or referrals
ranged from a low of 2 percent for New York to a high of 14 percent for San
Francisco. 7 Sixty-one percent of the COVID-19 related inspections resulting from
complaints and referrals occurred in 3 regions: Chicago (148), Atlanta (79), and
Boston (46). For details, see Figure 2.
Figure 2: Complaints/Referrals and Inspections by
OSHA Regional Offices
(February 1, 2020 – October 26, 2020)
Source: Complaints/Referrals reported in OSHA’s COVID-19 Response
Summary webpage and OSHA-provided Inspection data (unaudited)
7
The San Francisco Region covers the following states and territories: Arizona, California,
Hawaii, Nevada, American Samoa, Guam, and Northern Mariana Islands. However, Arizona,
California, Hawaii, and Nevada are state plans.
OSHA’S COVID-19 GUIDANCE
-6- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
COVID-19 VIOLATIONS
COVID-19 violations were issued by OSHA and states or territories operating
21 OSHA-approved State Plans. There are currently 22 State Plans 8 covering
both private sector and state and local government workers, and an additional
6 State Plans cover only state and local government workers. Under these State
Plans, states or territories have issued 1,679 violations for 756 COVID-19 related
inspections, equating to 85 percent of total COVID-19 violations issued, while
OSHA has issued 295 violations for 176 inspections, or 15 percent of the total,
from February 1, 2020, to October 26, 2020 (see Exhibit 1 for details by state).
On July 13, 2020, OSHA issued its first 3 COVID-19 violations for 3 inspections
from the same nursing home employer in Ohio for allegedly violating respiratory
protection standards after the company reported the hospitalization of 7
employees. OSHA found this company had not fully implemented an appropriate
respiratory protection program to protect its employees from COVID-19, and
failed to provide medical evaluations to determine employees’ ability to use a
respirator in the workplace.
On August 20, 2020, OSHA issued 7 violations (2 COVID-19 and 5 non COVID-
19) classified as serious 9 to a dental establishment in Massachusetts. OSHA
cited the dental practice for violations such as: 1) failing to provide medical
evaluations and fit testing for employees required to wear N-95 respirator masks
as protection against coronavirus, and 2) a lack of written programs related to
respiratory protection, bloodborne pathogen exposure control, and chemical
hazard communication.
Subsequently, between August 21, 2020, and October 26, 2020, OSHA issued
285 violations for 172 inspections in various industries, including:
• Nursing Care Facilities (67)
• General Medical and Surgical Hospitals (37)
• Specialty Hospitals, except Psychiatric and Substance Abuse (6)
• Residential Intellectual and Developmental Disability Facilities (6)
• Offices of Physicians, except Mental Health Specialists (7)
• Others (49)
8
Maine’s State Plan program did not issue any COVID-19 violations.
9
Section 17(k) of the OSH Act states, “a serious violation shall be deemed to exist in a place of
employment if there is a substantial probability that death or serious physical harm could result
from a condition which exists, or from one or more practices, means, methods, operations, or
processes which have been adopted or are in use, in such place of employment unless the
employer did not, and could not with the exercise of reasonable diligence, know of the presence
of the violation.”
OSHA’S COVID-19 GUIDANCE
-7- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
The violations were for non-compliance with standards, including:
• OSHA’s Bloodborne Pathogens standard (29 CFR §1910.1030)
• Respiratory Protection standard (29 CFR §1910.134)
• General Requirements - Personal Protective Equipment
(29 CFR §1910.132)
• Hazard Communication (29 CFR §1910.1200)
• Hazardous Waste Operations and Emergency Response
(29 CFR §1910.120)
MOST INSPECTIONS HAVE NOT BEEN
CONDUCTED ONSITE DURING THE
PANDEMIC
As noted, most OSHA onsite inspections have been suspended during the
pandemic. The OIG is concerned that without onsite observations, hazards or
unsafe practices may not be identified or mitigated for longer periods, placing
employees’ safety at greater risk.
According to the CDC, the use of Personal Protective Equipment (PPE) and
social distancing are critical to combatting COVID-19. The CDC notes that how
closely a person interacts with others in the workplace and how long that
interaction is sustained are the main factors that increase the risk of COVID-19
spreading. The lack of onsite inspections may impact OSHA’s ability to observe
employer practices, quickly mitigate any potential hazards, and issue violations
sooner to control the spread of the disease to other employees.
In a prior 2017 OIG report, 10 we found that for approximately one-third of the
citations issued, employers abated the hazard during the inspection or within
24 hours of OSHA identifying the hazard. The 2017 report also determined that
the remaining citations took an average of 3 months to issue, with hazards being
abated an average of 86 days after the OSHA inspection. This was primarily
because the OSH Act allowed up to 6 months for OSHA to issue a citation for
any type of hazard. While some citations are less complex than others and
require less time to complete, all proposed citations are subject to a review
process to ensure that OSHA issues accurate citations that can be legally
supported. Employers are not required to abate a cited hazard until the
10
DOL OIG “OSHA Could Do More to Ensure Employers Correct Hazards Identified During
Inspections,” (March 31, 2017, Report No. 02-17-201-10-105)
OSHA’S COVID-19 GUIDANCE
-8- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
Occupational Safety and Health Review Commission issues a final order or the
citation becomes final by operation of law. 11
OSHA has revised its enforcement policies and procedures during the COVID-19
pandemic as the agency understands that employers may face difficulties
complying with some OSHA standards, such as providing annual training and
annual certifications. OSHA area offices will assess an employer's efforts to
comply with standards that require annual or recurring audits, reviews, training,
or assessments. Where an employer has demonstrated efforts to comply in good
faith, area offices shall consider such efforts in determining whether to cite a
violation. In geographic areas experiencing either sustained elevated community
transmission or a resurgence in community transmission of COVID-19, OSHA
area offices will exercise their discretion, including consideration of available
resources, to continue prioritizing COVID-19 fatalities and imminent danger
exposures for inspections.
An OSHA official stated while the option to defer abatement was made available
to the field, it was implemented in only 3 situations. In lieu of citations, OSHA
issued hazard alert letters to the employers about the dangers of specific industry
hazards and provided information on how to protect workers exposed to those
safety and health hazards.
To ensure corrective actions have been taken once normal activities resume,
OSHA plans to develop a program to conduct monitoring inspections from a
randomized sampling of cases where violations were noted, but not cited, and
the same for fatality or imminent danger cases where inspections were not
conducted due to resource limitations. However, without information on when
normal activities might resume, and with the continued rise of COVID-19 cases in
the United States, we are concerned that employees may not be receiving
adequate information or training from their employers on how to reduce exposure
to COVID-19. Moreover, with the widespread impact of COVID-19, a randomized
sampling may not prioritize those businesses that are at highest risk of exposing
employees to COVID-19 at their worksites and OSHA must take additional steps
to control the spread of this infectious disease.
11
A citation can become a final order by operation of law when an employer does not contest
the citation, or pursuant to court decision or settlement. Repeated violations can bring a civil
penalty.
OSHA’S COVID-19 GUIDANCE
-9- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
OSHA HAS CONTINUED TO ISSUE COVID-19
RELATED GUIDANCE, BUT GUIDANCE IS
NOT ENFORCEABLE
OSHA issued guidance based on CDC, Food and Drug Administration, and
Environmental Protection Agency guidelines to help protect American employers
and workers, as well as to protect CSHOs and enforce COVID-19 violations. As
of October 26, 2020, OSHA had issued numerous pieces of guidance for various
employers and CSHOs (see Exhibits 2 and 3 for listings of the guidance issued).
According to OSHA, guidance is not a standard or regulation, and it creates no
legal obligations. It contains recommendations, as well as descriptions of
mandatory safety and health standards. The recommendations are advisory in
nature, informational in content, and are intended to assist employers in
providing a safe and healthful workplace. As such, guidance is not enforceable
and employers cannot be required to comply.
Guidance in and of itself cannot operate in lieu of an ETS as an enforcement
tool. However, an OSHA official stated guidance could be used to support
violations of the OSH Act’s General Duty Clause, 29 U.S.C. 654(a)(1).
Specifically, guidance is one form of evidence that can be used to show: (1) that
the hazard was recognized; and (2) that there was a feasible and useful method
to correct the hazard.
Since the start of the pandemic, OSHA has received requests from Congress
and stakeholders representing the healthcare and other industries, such as labor
unions, to issue an infectious disease ETS that protects workers from exposure
to COVID-19. An ETS creates a legal obligation that the agency and employers
are required to fulfill or uphold. Pursuant to OSH Act Section 5(a)(2), employers
must comply with safety and health standards and regulations issued and
enforced by OSHA or by an OSHA-approved State Plan.
According to the OSH Act Section 6(c)(1), the Secretary of Labor shall provide
for an ETS to take immediate effect upon publication in the Federal Register if
they determine:
(A) employees are exposed to grave danger from exposure to
substances or agents determined to be toxic or physically harmful
or from new hazards, and
(B) such an emergency standard is necessary to protect employees
from such danger.
OSHA’S COVID-19 GUIDANCE
-10- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
In addition, Section 6(c)(3) states:
(3) Upon publication of such [an ETS] in the Federal Register, the
Secretary shall commence a [rulemaking] proceeding in
accordance with section 6(b) of [the OSH Act], and the [ETS]
standard as published shall also serve as a proposed rule for the
proceeding. The Secretary shall promulgate a standard under this
paragraph no later than six months after publication of the [ETS].
While OSHA has issued guidance for employers and for its own staff to control
the spread of COVID-19, it has not issued an ETS. In fact, OSHA has not used
its authority to issue an ETS since 1983.
OSHA decided not to issue an ETS in response to the pandemic for various
reasons. On March 18, 2020, former Principal Deputy Assistant Secretary Lauren
Sweatt, in response to a request from the House Committee on Education and
Labor, stated:
We believe that working on a formal rulemaking at the same time
that the healthcare industry is responding to the COVID-19 public
health emergency is counterproductive to both the public health
response and robust stakeholder engagement. For example, the
efforts employers would take to document compliance with such a
standard would distract them from other vital response activities.
OSHA can best meet the needs of America's workers by being able
to rapidly respond in a flexible environment.
Additionally, according to OSHA, and as explained in former Principal Deputy
Assistant Secretary Sweatt’s March 18, 2020, letter to the U.S. House of
Representatives, Committee on Education and Labor, OSHA already has a
number of existing standards that impose enforceable obligations on employers
to protect workers from COVID-19.
For example, when necessary to protect workers, OSHA’s PPE standards,
including those in 29 CFR §1910 Subpart I, require the use of gloves, eye and
face protection, and respiratory protection. Furthermore, OSHA’s Bloodborne
Pathogens standard (29 CFR §1910.1030) applies to occupational exposure to
human blood and other potentially infectious materials, and the provisions of the
standard offer a framework that may help control some sources of the virus that
causes COVID-19. In addition, the General Duty Clause (Section 5(a)(1) of the
OSH Act) authorizes enforcement action in cases involving “recognized hazards
that are causing or are likely to cause death or serious physical harm,” which
could include exposure to COVID-19.
OSHA’S COVID-19 GUIDANCE
-11- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
In OSHA’s May 29, 2020, letter denying the American Federation of Labor and
Congress of Industrial Organizations' (AFL-CIO) petition to promulgate an ETS,
to protect working people from occupational exposure to infectious diseases
broadly, including COVID-19 OSHA also mentioned that its sanitation standard
provides hygiene requirements that, directly and indirectly, address the potential
for infectious disease agents to spread at the workplace. Finally, OSHA
determined it lacks sufficient evidence to find that infectious diseases generally
pose a "grave danger" to workers safety, though it made no finding as to whether
COVID-19 specifically poses a “grave danger.” Based on these reasons, OSHA
declined to issue an ETS under the current circumstances related to COVID-19.
Having an ETS could be of importance during the pandemic as enforceable
criteria because under the OSH Act’s General Duty Clause, 12 violations are
rarely issued. In FY 2019, OSHA cited the General Duty Clause 829 times and
cited all other standards 62,229 times. In FY 2018, OSHA cited the General Duty
Clause 883 times and all other standards 62,037 times. From Feb 1, 2020, to
October 26, 2020, OSHA has issued 295 violations for 176 COVID-19 related
inspections and only 3 General Duty Clause violations to 3 establishments.
According to OIG interviews, officials in area offices mostly agreed that having a
standard, such as an ETS, would be useful during an inspection. An area office
official also acknowledged that the General Duty Clause is harder to cite and
believes a standard would make enforcement easier for issuing citations. Another
area office official was not aware of an ETS ever being used, but stated that
COVID-19 complaint citations may be difficult because inspectors must be able
to prove that contracting COVID-19 was work-related.
Furthermore, some State Plan programs indicated the importance of having
specific standards to protect workers from exposure to airborne infectious
diseases. Specifically, the states of Virginia, Michigan, Oregon, and California
have developed an ETS to address COVID-19. On July 15, 2020, Virginia was
the first state to adopt a specific standard intended to protect workers and to
control, prevent, and mitigate the spread of COVID-19 in the workplace. For
Virginia, the new rules require companies to notify workers of possible exposure
to infected co-workers within 24 hours, while also mandating physical distancing,
as well as sanitation, disinfection, and handwashing procedures.
12
Section 5(a)(1) of the OSH Act (aka General Duty Clause) requires each employer “furnish to
each of his employees employment and a place of employment which are free from recognized
hazards that are causing or are likely to cause death or serious physical harm to his employees.”
OSHA’S COVID-19 GUIDANCE
-12- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
On October 14, 2020, Michigan issued an ETS to clarify requirements for
employers to control, prevent, and mitigate the spread of infection. Michigan’s
governor stated:
While most Michigan job providers are doing their part to slow the
spread of COVID-19, these rules provide them with clarity
regarding the necessary requirements to keep their workplaces
safe and their employees healthy.
Under the ETS, businesses that resume in-person work must, among other
things, have a written COVID-19 preparedness and response plan and provide
thorough training to their employees that covers, at a minimum, workplace
infection control practices, the proper use of PPE, steps workers must take to
notify the business or operation of any symptoms of COVID-19 or a suspected or
confirmed diagnosis of COVID-19, and how to report unsafe working conditions.
Oregon also enacted an ETS to cover healthcare, restaurant, retail, construction,
and other general industry employees. The ETS, which took effect
November 16, 2020, is expected to remain in effect until May 4, 2021. Oregon
continues to pursue permanent rulemaking that would provide a structure for
responding to potential future disease outbreaks. The ETS is intended to further
improve the current structure for reducing risks in the workplace by requiring
several measures many employers have voluntarily implemented. For example,
the ETS requires employers to notify employees of a workplace infection and
provide training to workers on how to reduce risks. Employers must also formally
assess the risk of exposure, develop infection control plans, and address indoor
air quality.
Oregon’s ETS requires more measures for exceptionally high-risk jobs, such as
direct patient care or decontamination work, aerosol-generating or postmortem
procedures, and first-responder activities. The additional measures include:
• Detailed infection control training and planning
• Sanitation procedures for routine cleaning and disinfection
• Robust use of PPE
• Operation of existing ventilation systems according to standards
• Use of barriers, partitions, and airborne infection isolation rooms
• Screening and triaging for symptoms of COVID-19
Since 2009, California has had two standards for aerosol transmittable diseases
– one that protects employees in health care and other higher risk environments,
and another that protects employees from diseases contracted from animals. On
November 30, 2020, California approved an ETS on COVID-19 infection
prevention. The ETS applies to most workers in California not covered by the
OSHA’S COVID-19 GUIDANCE
-13- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
aerosol transmissible diseases standard and requires employers to: 1) establish,
implement, and maintain an effective written COVID-19 prevention program; and
2) provide effective training and instruction to employees on how COVID-19 is
spread, infection prevention techniques, and information regarding COVID-19
related benefits.
When there are multiple COVID-19 infections and COVID-19 outbreaks in
California, employers must follow the requirements for testing and notifying public
health departments of workplace outbreaks. The requirements include: 1) free
COVID-19 testing for employees who might have been exposed; 2) contacting
the local health department immediately, but no longer than 48 hours after
learning of 3 or more COVID-19 cases, to obtain guidance on preventing the
further spread of COVID-19 within their workplace; and 3) recording and tracking
all COVID-19 cases, while ensuring medical information remains confidential.
If OSHA issued an airborne infectious disease ETS designed to address
COVID-19, employers would be legally obligated to comply with it. In addition,
CSHOs would not need to rely solely on the OSH Act’s General Duty Clause and
may not be hampered by a lengthy process of gathering evidence to establish
that employers did not protect workers from COVID-19. In addition, an ETS
would impose more specific obligations that would give CSHOs more clarity on
the evidence they needed to gather to support violations.
Over the course of almost 9 months since the pandemic began to emerge as a
nationwide health threat, OSHA only issued 295 violations for 176 COVID-19
related inspections. Most of the violations were for violating particular standards
for respiratory protection, recordkeeping, and PPE. However, according to
OSHA, only 3 COVID-19 General Duty Clause violations were issued as of
October 26, 2020, to 3 meatpacking establishments for failing to provide a
workplace free from recognized hazards that cause death or serious harm.
Since the former Principal Deputy Assistant Secretary for Occupational Safety
and Health’s March 18, 2020, response to the House Committee on Education
and Labor that an ETS was not necessary, there has been a growing number of
COVID-19 cases in the U.S. As of January 14, 2021, the CDC reported
approximately 23 million confirmed COVID-19 cases and more than 383,000
COVID-19 related deaths in the United States. Furthermore, as of October 26,
2020, OSHA had received 11,041 COVID-19 complaints or referrals. To help
control the spread of COVID-19, OSHA should consider whether COVID-19
should be classified as a “grave danger” and reconsider whether an ETS would
be necessary to protect employees from such danger.
OSHA’S COVID-19 GUIDANCE
-14- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
OSHA NEEDS TO ISSUE STRONGER
GUIDANCE TO ITS STAFF TO PRIORITIZE
RESOURCES BASED ON HIGH-RISK
EMPLOYERS
As of October 26, 2020, OSHA had issued 33 key guidance documents for
employers (see Exhibit 2) and 11 key COVID-19 related internal guidance
documents to enhance safety provisions during the pandemic for its regional
offices, state plan designees, and CSHOs (see Exhibit 3). However, while
OSHA’s mission is to ensure the health and safety of more than 130 million
workers, the internal guidance used to assist with enforcement activities issued
during the preliminary months of the pandemic did not emphasize the need to
increase COVID-19 inspections for very high or high-risk healthcare workers, or
employees in other industries who were dying or falling ill. The largest nurses’
union, National Nurses United, reported that as of September 16, 2020, more
than 1,700 healthcare workers had died due to COVID-19, yet as of
October 26, 2020, OSHA’s 497 COVID-19 fatality inspections at healthcare
establishments had resulted in 198 COVID-19 violations issued to 124 healthcare
establishments. According to an OSHA official, 64 percent of healthcare fatality
inspections remained open and could have violations issued later.
OSHA’s enforcement guidance does not emphasize the need to increase
COVID-19 inspections for very high or high-risk healthcare or other employers to
help protect employees against exposure to COVID-19. On May 19, 2020, OSHA
issued the Updated Interim Enforcement Response Plan for COVID-19, which
required area directors to exercise their discretion, including consideration of
available resources, to continue prioritizing COVID-19 fatalities and imminent
danger exposures for inspection. As of October 26, 2020, or approximately
9 months into the pandemic, OSHA had performed a total of 1,133 COVID-19
related inspections, 682 for fatality and 451 for COVID-19 complaints and
referrals. OSHA had reported 295 violations for 176 COVID-19 related
inspections. According to an OSHA official, 65 percent of these inspections
remained open and could have violations issued later.
OSHA’S COVID-19 GUIDANCE
-15- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
OIG’S RECOMMENDATIONS
We recommend the Deputy Assistant Secretary for Occupational Safety and
Health:
1) Improve OSHA’s inspection strategy by prioritizing very high and
high-risk employers for COVID-19 related onsite inspections,
particularly as businesses reopen and increase operations in
various localities across the United States.
2) Ensure remote inspections are tracked retroactive to
February 1, 2020, and going forward.
3) Compare remote inspections to onsite inspections and document
analysis of the frequency and timeliness of inspectors in identifying
and ensuring abatement of worksite hazards.
4) Analyze and determine whether establishing an infectious
disease-specific ETS is necessary to help control the spread of
COVID-19 as employees return to worksites.
SUMMARY OF OSHA’S RESPONSE
OSHA concurred with each of the report’s 4 recommendations. According to
OSHA’s response, pursuant to President Biden’s January 21, 2021, Executive
Order on Protecting Worker Health and Safety, the agency is already working to
launch a national program to focus OSHA enforcement efforts related to
COVID-19 on violations that put the largest number of workers at serious risk.
OSHA’s written response to our draft report is included in its entirely in
Appendix B.
OSHA’S COVID-19 GUIDANCE
-16- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
We appreciate the cooperation and courtesies OSHA extended us during this
audit. OIG personnel who made major contributions to this report are listed in
Appendix C.
Carolyn R. Hantz
Assistant Inspector General for Audit
OSHA’S COVID-19 GUIDANCE
-17- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
EXHIBIT 1: COVID-19 FEDERAL AND STATE PLAN VIOLATIONS
Number Percentage Percentage
Number of
of of of
Inspections
Violations Violations Inspections
Federal
ALABAMA 3 2
ARIZONA 1 1
CALIFORNIA 1 1
COLORADO 2 1
CONNECTICUT 20 10
FLORIDA 7 5
GEORGIA 7 4
ILLINOIS 17 8
INDIANA 6 3
LOUISIANA 1 1
MASSACHUSETTS 25 10
MISSOURI 4 4
MONTANA 1 1
NEW JERSEY 113 68
NEW YORK 56 38
OHIO 10 7
PENNSYLVANIA 2 1
RHODE ISLAND 2 1
SOUTH DAKOTA 1 1
TEXAS 9 6
WEST VIRGINIA 5 1
WISCONSIN 2 2
Total 295 15% 176 19%
OSHA’S COVID-19 GUIDANCE
-18- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
State Plan
States
ALASKA 4 1
ARIZONA 10 5
CALIFORNIA 407 147
CONNECTICUT 8 2
INDIANA 6 4
IOWA 5 3
KENTUCKY 8 5
MARYLAND 22 6
MICHIGAN 463 132
MINNESOTA 110 41
NEVADA 147 166
NEW JERSEY 2 2
NEW MEXICO 2 2
NORTH CAROLINA 2 1
OREGON 110 67
PUERTO RICO 3 3
SOUTH CAROLINA 5 3
TENNESSEE 9 6
VERMONT 6 3
VIRGINIA 22 13
WASHINGTON 328 144
Total 1,679 85% 756 81%
Grand Total 1,974 100% 932 100%
Source: OSHA-provided violation and inspection data from February 1, 2020
to October 26, 2020 (unaudited)
OSHA’S COVID-19 GUIDANCE
-19- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
EXHIBIT 2: OSHA COVID-19 EMPLOYER GUIDANCE
ITEM
DATE SUBJECT
#
1 March 9, 2020 Preparing Workplaces
2 March 2020 Prevent Worker Exposure to Coronavirus
3 March 24, 2020 Worker Exposure Risk (Risk Pyramid)
Fact sheet on Healthcare Workplaces Classified
4 Unknown
as Very High or High Exposure Risk
Additional Guidance for Healthcare Workers and
5 Unknown
Employers
Ten Steps All Workplaces Can Take to
6 April 6, 2020
Reduce Risk of Exposure to Coronavirus
7 April 8, 2020 Guidance for Retail Workers
8 April 13, 2020 Guidance for the Package Delivery Workforce
9 April 16, 2020 Guidance for Manufacturing Industry Workforce
U.S. Dept. of Labor Issues Alert to Help Keep
10 April 21, 2020 Construction Workers Safe During the
Coronavirus Pandemic
Guidance for Meat and Poultry Processing
11 April 26, 2020 Workers: Interim Guidance from the CDC and the
OSHA
12 May 1, 2020 Restaurants and Beverage Vendors
13 May 11, 2020 Dental Practitioners
Nursing Home and Long-Term Care Facility
14 May 14, 2020
Workers
15 May 14, 2020 Retail Pharmacies
16 May 14, 2020 Rideshare, Taxi, and Car Service Workers
Retail Workers and Employers in Critical and
17 Unknown
High Customer-Volume Environments
18 May 28, 2020 Social Distancing
Agriculture Workers and Employers Interim
19 June 2, 2020 Guidance from CDC and the U.S. Department of
Labor
20 June 2, 2020 Stockroom and Loading Dock Workers
Frequently Asked Questions: Cloth Face
21 June 10, 2020
Coverings
22 June 17, 2020 Returning to Work
OSHA’S COVID-19 GUIDANCE
-20- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
ITEM
DATE SUBJECT
#
Employers to Help Protect Oil and Gas Workers
23 July 7, 2020
During the Coronavirus Pandemic
Meat and Poultry Processing Workers and
24 July 8, 2020
Employers Updated Guidance
Steps to Protect Automotive Service Workers
25 August 6, 2020
from Exposure to Coronavirus
26 August 18, 2020 Food Truck Workers
27 August 18, 2020 Hair and Nail Salon Workers
Steps to Reducing Worker Exposure n Fish and
28 August 28, 2020
Seafood Processing and Packaging Facilities
Understanding Compliance with OSHA’s
29 August 28, 2020
Respiratory Protection Standard
Use of Cloth Face Coverings while Working
30 September 1, 2020
Indoors in Hot and Humid Conditions.
Use of Cloth Face Coverings while Working
31 September 1, 2020
Outdoors in Hot and Humid Conditions.
32 October 7, 2020 In-Home Repair Services
33 October 7, 2020 Restaurants Resuming Dine-In Service
OSHA’S COVID-19 GUIDANCE
-21- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
EXHIBIT 3: OSHA COVID-19 CSHO GUIDANCE
ITEM # DATE SUBJECT
Temporary Enforcement Guidance - Healthcare
1 March 14, 2020 Respiratory Protection Annual Fit - Testing for
N95 Filtering Facepieces
Enforcement Guidance for Respiratory Protection
2 April 3, 2020
and the N95 Shortage
Enforcement Guidance for Use of Respiratory
3 April 3, 2020 Equipment Certified Under Standards of Other
Countries of Jurisdictions
Expanded Temporary Guidance on Respiratory
4 April 8, 2020 Protection Fit-Testing for N95 Filtering Facepieces
in all Industries During the Coronavirus
Enforcement Guidance for Recording Cases of
5 April 10, 2020
Coronavirus Disease 2019
Interim Enforcement Response Plan for
6 April 13, 2020
Coronavirus Disease 2019
Discretion in Enforcement When Considering an
7 April 16, 2020
Employer's Good Faith Efforts
Enforcement Guidance on Decontamination of
8 April 24, 2020
Filtering Facepiece Respirators in Healthcare
Revised Enforcement Guidance for Recording
9 May 19, 2020
Cases of Coronavirus Disease 2019
Updated Interim Enforcement Response Plan for
10 May 19, 2020
Coronavirus Disease 2019
Temporary Enforcement Guidance – Tight-Fitting
11 October 2, 2020
Powered Air Purifying Respirators
OSHA’S COVID-19 GUIDANCE
-22- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
APPENDIX A: SCOPE, METHODOLOGY, & CRITERIA
SCOPE
Our audit covered OSHA’s interim guidance for preventing exposure to
COVID-19 as of October 26, 2020. In addition, our audit covered COVID-19
complaint and inspection data from February 1, 2020, to October 26, 2020.
METHODOLOGY
We conducted this performance audit in accordance with generally accepted
government auditing standards. Those standards require that we plan and
perform the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our audit objective.
We believe that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objective.
We confirmed our understanding of OSHA’s guidance issuance processes
through interviews and document reviews. We reviewed laws, policies,
procedures, documents, audit reports, and congressional hearings. We
compared OSHA’s procedures with other federal requirements, including the
OSH Act. We interviewed 2 OSHA directorates: 1) Enforcement Programs; and
2) Construction. We also interviewed 3 CSHOs and 1 CSHO supervisor within
the 3 regions with the highest number of COVID-19 complaints at the time of the
selection (New York, Boston, and Chicago).
We reviewed guidance issuance records to test if OSHA issued employer and
enforcement guidance consistent with regulations and the OSH Act. From
OSHA’s COVID-19 Response Summary webpage, we obtained the total number
of complaints/referrals and inspections by region and industry from
February 1, 2020, through October 26, 2020, and analyzed this data.
RELIABILITY ASSESSMENT
We did not perform a data reliability assessment. Our audit was limited to a
review of the guidance OSHA developed to address challenges created by
COVID-19 and to what extent those challenges affected OSHA’s ability to protect
the workforce. Any data related to inspections, complaints/referrals, or violations
was reported by OSHA and is considered unaudited.
OSHA’S COVID-19 GUIDANCE
-23- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
INTERNAL CONTROLS AND RISK ASSESSMENT
In planning and performing our audit, we considered OSHA’s internal controls
relevant to our audit objective by obtaining an understanding of those controls
and assessing control risks relevant to our objective. We considered the internal
control elements of control environment, risk assessment, control activities,
information and communication, and monitoring during our planning and
substantive phases and evaluated relevant controls. The objective of our audit
was not to provide assurance of the internal controls; therefore, we did not
express an opinion on OSHA’s internal controls. Our consideration of internal
controls for administering the accountability of the program would not necessarily
disclose all matters that might be significant deficiencies. Because of the inherent
limitations on internal controls, or misstatements, noncompliance may occur and
not be detected.
CRITERIA
1. Coronavirus Aid, Relief, and Economic Security Act, March 27, 2020
2. Occupational Safety and Health Act of 1970
• Section 5(a)(1) - General Duty Clause of the OSH Act
3. OSHA Guidance for Workplaces, as of March 9, 2020
• Preparing Workplaces for COVID-19
• Manufacturing Industry Workforce
• Retail Workers
• Package Delivery Workforce
• Respiratory Protection Fit-Testing for N-95 Filters in All Industries
4. OSHA Guidance for Enforcement, as of March 14, 2020
• Temporary Enforcement - Healthcare Respiratory Protection
Annual Fit - Testing for N-95 Filtering
• Enforcement Considering Employer's Good Faith Efforts
• Recording Cases
• Respiratory Protection
• Use of Respiratory Equipment Certified under Standards of Other
Countries
OSHA’S COVID-19 GUIDANCE
-24- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
5. Existing Applicable Standards
• 29 CFR §1904 – Recording and Reporting Occupational Injuries
and Illness
• 29 CFR §1910.1030 – Bloodborne Pathogens
• 29 CFR §1910.132 – Personal Protective Equipment (General
Requirements)
• 29 CFR §1910.133 – Eye and Face Protection
• 29 CFR §1910.134 – Respiratory Protection
• 29 CFR §1910.141 – Sanitation
• 29 CFR §1910.145 – Specifications for Accident Prevention Signs
and Tags
• 29 CFR §1910.1020 – Access to Employee Exposure and
Medical Records
6. Updated Interim Enforcement Response Plan for COVID-19, May 19, 2020
7. OSHA’s Field Operations Manual, effective April 14, 2020
• Chapter 3, Inspection Procedures
• Chapter 9, Complaint and Referral Processing
OSHA’S COVID-19 GUIDANCE
-25- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
APPENDIX B: AGENCY’S RESPONSE TO THE REPORT
OSHA’S COVID-19 GUIDANCE
-26- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
OSHA’S COVID-19 GUIDANCE
-27- NO. 19-21-003-10-105
U.S. Department of Labor – Office of Inspector General
APPENDIX C: ACKNOWLEDGEMENTS
Key contributors to this report were:
Labony Chakraborty, Writer Editor
Richard Donna, Expert Auditor
Miguel Hughes, Expert Auditor
Steven Johnson, Expert Auditor
Mark Schwartz, Audit Director
Barry Weiss, Expert Auditor
Steve Witherspoon, Program Analyst
Cardelia Yan, Audit Manager
OSHA’S COVID-19 GUIDANCE
-28- NO. 19-21-003-10-105
REPORT FRAUD, WASTE, OR ABUSE
TO THE DEPARTMENT OF LABOR
Online
http://www.oig.dol.gov/hotline.htm
Telephone
(800) 347-3756 or (202) 693-6999
Fax
(202) 693-7020
Address
Office of Inspector General
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210
File and source
- File
- 19-21-003-10-105.pdf
- Size
- 702,475 bytes
- SHA-256
- 388c0747ce686b75540a6fe2d4f4f5746f19c214359b86a4ebe6a97357d6eaea
- Our copy
- 19-21-003-10-105.pdf
- Original
- www.oig.dol.gov