OSHA’s shifting guidance has employers’ heads spinning. For the third time since the onset of the pandemic, OSHA has issued guidance about recording COVID-19 cases. In March, it sent a memo reminding employers that COVID-19 diagnoses are recordable events, but in April it backtracked, significantly limiting the reporting requirements. Specifically, only cases related to health care workers, first responders, and correctional institution employees had to be recorded. All other employers were exempt except in cases in which “objective evidence” existed that a COVID-19 infection was work-related or the evidence was “reasonably available” to the employer.
New guidance announced on May 19 overrides the April guidance.Essentially, the new guidance requires an individualized work-relatedness analysis for all industries.
Effective May 26, COVID-19 cases are recordable if the illness is confirmed as COVID-19, the illness is work-related as defined by 29 CFR 1904.5 and the case involves at least one of the general recording criteria listed in 29 CFR 1904.7. The criteria include death, days away from work, medical treatment “beyond first aid,” loss of consciousness, and restricted work or transfer to another job. The revised enforcement policy directs that employers “make reasonable efforts” to investigate confirmed cases of coronavirus in the workplace to determine if they were more likely than not work-related.
Recognizing employee privacy concerns, OSHA indicates that employers are “not expected to undertake extensive medical inquiries” and may rely only “on the information reasonably available to the employer at the time it made its work-relatedness determination.” According to Conn Maciel Carey LLP, an OSHA/MSHA Workplace Safety, Labor and Employment Boutique Law Firm, it will be sufficient in most cases for employers to:
- Ask the employee how he believes he contracted the COVID-19 illness
- Discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and
- Review the employee’s work environment for potential SARS-CoV-2 exposure (which should be informed by any other instances of workers in that environment contracting COVID-19 illness).
During the investigations, employers need to consider workers’ privacy and refrain from disclosing the names of those who have tested positive for the virus to others in the workplace and should document all aspects of the investigation. OSHA notes, “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.”
To assist employers in identifying work-relatedness, OSHA describes the types of evidence that may weigh in favor of or against work-relatedness. For instance, OSHA says, COVID-19 illnesses “are likely work-related” if:
- Several cases develop among workers who work closely together and there is no alternative explanation;
- The illness 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; and
- Job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
The guidance also indicates that an employee’s COVID-19 illness likely is NOT work-related if:
- Only one worker in a general vicinity in the workplace contracts COVID-19;
- Job duties do not include having frequent contact with the general public, regardless of the rate of community spread;
- Outside the workplace, the infected employee associates closely and frequently with a non-coworker (e.g., a family member, significant other, or close friend) who has COVID-19.
As Conn Maciel Carey LLP points out, the biggest differences between the April 10 guidance and the May 19 guidance are:
- There is no exemption from conducting case-by-case work relatedness analyses for medium and low-risk exposure workplaces; and
- The new memo expands the examples of the type of objective evidence of likely work-relatedness from just a cluster of positive cases, to also include cases where someone contracts the illness after a lengthy exposure at work or has job duties that involve frequent, close exposure to the general public.
The firm also notes the importance of the term “no alternative explanation.” Where there is widespread community spread, it is important to document if an employee acknowledges such interactions away from work.
When determining whether an employer has complied with the revised policy, OSHA instructs compliance officers in a memo issued the same day to apply these considerations:
- The reasonableness of the employer’s investigation into whether the COVID-19 case was work-related
- The evidence available to the employer
- The evidence that COVID-19 was contracted at work
Consistent with existing regulations, employers with no more than 10 employees and certain employers in “low-hazard industries” do not have an obligation to report COVID-19 cases unless a work-related illness results in death, in-patient hospitalization, amputation, or loss of an eye.
It is important to remember that even if a COVID-19 is recordable, it does not mean that it will be compensated by workers’ comp. OSHA recordability does not impact workers’ comp determinations and vice versa.
What employers should do now
For employers to prove a reasonable and full faith inquiry, Dustin Boss, a fellow Certified WorkComp Advisor offers this advice:
- Implement preventive measures and methods for contact tracing as employees return to the workplace
- Develop procedures to respect employee privacy during investigation into work-relatedness of a confirmed case of COVID-19
- Update 2020 OSHA records and retrain staff members responsible for tracking injuries (if late, submit 2019 data which was due March 2)
- Focus on minimizing the risk of transmission in the workplace and develop procedures to investigate the circumstances surrounding employees who test positive for COVID-19
Beyond the recording requirements, employers are exposed to the possibility of OSHA citations. As the fear of contracting the novel coronavirus permeates the workplace, thousands of employees have complained to OSHA regarding the insufficiency of their employers’ protection against COVID-19. In the same news release announcing the new enforcement guidelines, OSHA announced that it is increasing in-person inspections at all types of workplaces. “The new enforcement guidance reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available. OSHA staff will continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.”
Boss points out that enforcement of COVID-19 issues falls under the catch-all General Duty Clause that employers will provide a place of employment free from recognized hazards that are likely to cause death or serious harm to his employees. He notes that citations for COVID-19 exposure will rely on guidance the employer did not meet, including OSHA’s.
Both OSHA and the CDC recommend employers adopt exposure control plans. (see post for more detail)
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