Client Alert: OSHA Issues Revised Enforcement Guidance to Employers for Recording Cases of COVID-19

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On May 26, 2020, the Occupational Safety and Health Administration (“OSHA”) implemented new requirements for employers covered by OSHA’s recordkeeping standards to determine whether employees have contracted COVID-19 while at work.

In an effort “to provide certainty to employers and workers,” OSHA is now requiring all employers to record all COVID-19 cases that:

• Are confirmed by at least one positive test (as defined by the CDC as a respiratory specimen that tested positive for SARS-CoV-2);
• Are work-related; and
• Cause employees to seek medical treatment beyond first aid, result in lost workdays or restricted duty or cause loss of consciousness or death.

Having previously recognized the difficulty of determining whether a COVID-19 case was “work-related” due to potential employee infections at home, in the community, or elsewhere, OSHA initially limited the record keeping requirement around work-related determinations to employers in healthcare industries, emergency response organizations, and correctional institutions. As a result, most employers were exempt from making work-related determinations unless there was reasonably objective evidence reasonably available to the employer of a work-related case. However, the new guidance will expand the requirements to all employers with the exception of employers with 10 or fewer employees and certain employers in low hazard industries (a list of partially exempt industries can be found here.

In evaluating employers’ work-related assessment efforts, OSHA will look to the following factors:

• The reasonableness of the employer’s investigation into “work-relatedness.”

OSHA notes that employers can satisfy their reasonableness burden in most circumstances if they:

• • Ask the employee how they believe they contracted COVID-19;
  • Discuss, to extent feasible, the employee’s out-of-work activities; and
  • Review the employee’s work environment to consider other potential exposure.

• The evidence available to the employer.

Determinations of whether a case is work-related should be based on evidence reasonably available to the employer at the time the determination is made, but can be changed later when the employer later learns more information that might impact the work-relatedness determination.

• Evidence that a COVID-19 illness was contracted at work.

OSHA’s new guidance provides some evidence that may weigh in favor of or against work-relatedness. For instance:

• • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

According to OSHA’s new guidance, if, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.

Finally, OSHA reminds all employers that it is important as a matter of worker health and safety, as well as public health, for an employer to examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.

More information about the particulars of these new requirements can be found here.   If you have questions about how this enforcement guidance impacts you or your business, please contact Judson Welborn or your Manning Fulton relationship attorney.