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As OSHA Returns to Pre-COVID-19 In-Person Inspections, OSHA Says Employers Must Make Efforts to Find Out If An Employee’s COVID-19 Is Work-Related – But How?

By Marc A. Schulz, Esq.Attorney Marc Schulz

On May 19, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it is increasing in-person inspections at all types of workplaces, and it will now enforce the recordkeeping requirements for employee coronavirus illnesses for all employers. Under the revised guidance, if an employee contracts COVID-19, OSHA says an employer must make reasonable efforts—based on the evidence available to the employer—to ascertain whether a case of COVID-19 is work-related.  As businesses make plans to reopen, OHSA’s new approach to recordkeeping enforcement and commitment to increasing inspections makes it even more critical that employers have a protocol in place to properly investigate situations where an employee tests positive for COVID-19.

OSHA Recordkeeping Requirements

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if the case:

  1. Is confirmed as a COVID-19 illness;
  2. Is work-related as defined by 29 CFR 1904.5; and
  3. Involves one or more of the general recording criteria in 29 CFR 1904.7 (including death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, a significant injury or illness diagnosed by an authorized health care provider even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness).
     

On April 10, 2020, OSHA issued its enforcement guidance, which recognized that certain employers “may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.” Therefore, OSHA said that it would not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where: “(1) There is objective evidence that a COVID-19 case may be work-related; and (2) The evidence was reasonably available to the employer.” This waiver of enforcement did not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions in areas where there is ongoing community transmission.

OSHA, after being criticized for not adequately protecting workers from COVID-19, receiving complaints from employees, and being slapped with a class-action lawsuit, changed its stance on enforcement in yesterday’s guidance. Under the new policy, effective May 26, 2020, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee coronavirus illnesses for all employers.

A Reasonable Investigation into Work-Relatedness

Considering the nature of COVID-19 and how quickly it spreads, it can be difficult for employers to determine whether a COVID-19 illness is work-related, especially when an employee is exposed both in and out of the workplace. Under the Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), employers must make reasonable efforts, based on the available evidence, to determine whether an employee’s COVID-19 is work-related.

Examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.  Hazard recognition is crucial because the risk of occupational exposure varies based on the industry type and the need for contact within six feet. Understanding OSHA’s occupational risk pyramid for COVID-19 will also assist employers in evaluating whether an employee’s job duties affect a worker's exposure risk levels.

If, after the reasonable and good faith inquiry described in the enforcement guidance, 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.  Also, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations.

Practical Takeaway

Phase 1 of New York State’s reopening plan has already started in certain regions, and employers need to develop and implement well-designed reopening plans that help reduce the spread of COVID-19, protect employees, and limit employer liability. These plans should include measures to carefully investigate any instance where an employee tests positive for COVID-19. To demonstrate good faith compliance with OSHA recordkeeping requirements, employers should ensure they have documented their considerations and the information relied upon in making their determinations of work-relatedness. Members of our NYS Labor Law & Construction Defect Practice Group are certified and trained in OSHA and can answer questions and assist with investigations.

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