Publication

May 21, 2020Client Alert

New OSHA Enforcement on COVID-19 Recordkeeping

On May 19, 2020, the Occupational Safety and Health Administration (OSHA) revised its approach to  recording of COVID-19 related cases, outside of health care related workplaces. The new enforcement guidance is effective on May 26, 2020.

Prior to May 26, the enforcement policy was:

OSHA will not enforce 29 CFR § 1904 to require non-health care employers to make the same work-relatedness determinations (as applied in health care employment), except where:

  1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
  2. The evidence was reasonably available to the employer. For purposes of this memorandum, 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.

The revised enforcement policy provides significantly more detail and some challenges for employers. This alert will first identify the new policy then discuss practical approaches to this complicated policy.

Under the new OSHA enforcement policy, a COVID-19 case must be recorded on the OSHA 300 log of injuries and illnesses under the following circumstances:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC); [1]
  2. The case is work-related, as defined by 29 CFR § 1904.5;[2] and
  3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.[3]

OSHA Enforcement Guidance

OSHA’s new enforcement guidance says that “because of the difficulty with determining work-relatedness, OSHA is exercising enforcement discretion to assess employers’ efforts on making work-related determinations.” OSHA instructs its inspectors that they should apply the following approach in assessing the employer’s compliance:

  • The reasonableness of the employer’s investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness,
    • (1) to ask the employee how he believes he contracted the COVID-19 illness;
    • (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure.
    • (3) The review should be informed by any other instances of workers in that environment contracting COVID-19 illness.
    • The evidence available to the employer. Should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee’s COVID-19 illness, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.
    • The evidence that a COVID-19 illness was contracted at work. Certain types of evidence may weigh in favor of or against work-relatedness. For instance:
      • illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
      • 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 and there is no alternative explanation.
      • illness is likely work-related if his job duties include having frequent, close exposure to the general public 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.
      • give due weight to any evidence provided by medical providers, public health authorities, or the employee.

    The following additional specific enforcement guidance is provided:

    • COVID-19 is a respiratory illness and should be coded as such on the OSHA Form 300. Because this is an illness, if an employee voluntarily requests that his or her name not be entered on the log, the employer must comply as specified under 29 CFR § 1904.29(b)(7)(vi).

    Practical Considerations

    While this new enforcement policy provides more detail than the previous policy, it presents significant difficulty in the real world of workplace COVID-19 practices. Public health agencies are just now increasing the quantity of testing for COVID-19 in many communities. In many cases, employers are being asked to voluntarily submit their workforces to testing, especially where they have already had an illness or positive test among their workers. The first challenge these employers face is that public health cannot share test results, citing HIPAA as the basis for confidentiality. Employers are then left in the dark as to the results of testing.

    Most employers will require workers to report if they have a positive test result and will not allow a worker to come to work in that circumstance.[4] That self-quarantine event is going to create a potential lost-time recordable event. If that case is not recorded on the OSHA 300 log, it is likely that OSHA will expect employer documentation as to why it was not recorded.

    If the case is the first positive case at the workplace, and the employee’s job duties do not involve contact with the public or customers, this may be the only information needed. But, where the employer is aware of other illnesses or positive tests among the workforce, or the employee has contact with customers or other visitors to the workplace, more will be necessary. In those circumstances, based upon the OSHA enforcement guidance, employers should ask the employee who has reported a positive test result two (2) questions (and should document the responses to those questions).

    Two Questions to Ask an Employee With a Positive COVID-19 Test Result

    1. How do you think you were infected?
    2. Other than work, have you been staying at home, or have you been any place else where you might have been exposed?[5]

    The answer to those questions may be enough to determine that the case is not recordable. But if employees think they were infected at work (or do not know), and state they were staying home when not at work, further inquiry may be necessary, if this is not the first case at the workplace.

    Generally, this inquiry would look for others to whom the employee may have had exposure at work. Exposures would include anyone who already tested positive or had symptoms in the days before the employee tested, at the same time the employee tested, or within days after the employee tested. Exposure, according to the CDC, is defined as being within six feet for ten minutes or more, or being coughed on by someone with COVID-19. It is still unclear whether an exposure exists if both employees are wearing a face covering during the contact, but some public health departments are concluding that there is no exposure if both parties are wearing a face covering.

    Reporting to OSHA

    OSHA also requires employers to report work related fatalities and hospitalizations. The enforcement policy guidance is silent on how this recordkeeping guidance will be applied to reporting obligations. If it appears that an employee’s COVID-19-related death or hospitalization is connected to infection in the workplace, employers should contact legal counsel regarding reporting. OSHA requires that fatalities be reported within eight (8) hours, and hospitalizations within twenty-four (24) hours.

    Conclusion

    Recording of COVID-19 cases under OSHA standards is complicated. Ask the two questions above and temporarily record a case on the OSHA 300 log if the answers suggest the case could be work related. Go back and study the case later in the year based upon all information available to determine whether the case can be stricken from the OSHA 300 log. But if there is a death or hospitalization, in consultation with legal counsel, determine whether the fatality needs to be reported within eight (8) hours or the hospitalization needs to be reported within twenty-four (24) hours.


    [1] A confirmed case of COVID-19 means an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19. See www.cdc.gov/coronavirus/2019-ncov/php/reporting-pui.html.

    [2] Under 29 CFR § 1904.5, an employer must consider an injury or illness to be work-related if an event or exposure in the work environment (as defined by 29 CFR § 1904.5(b)(1)) either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in 29 CFR § 1904.5(b)(2) specifically applies. See www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.5.  As discussed below, OSHA is exercising enforcement discretion regarding work-relatedness in the context of employee COVID-19 illness.

    [3] Under 29 CFR § 1904.7, an employer must consider an injury or illness to meet the general recording criteria, and therefore to be recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. An employer must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, 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. See www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.7

    [4] CDC guidance says that essential workers who are asymptomatic may work even with a positive COVID-19 test, if wearing face coverings and other measures are taken such as ongoing symptom monitoring.

    [5] Keep this information confidential.

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