The federal Occupational Safety and Health Administration (OSHA) has published Revised Enforcement Guidance for Recording Coronavirus Cases, which will take effect on May 26, 2020. The revised guidance will supersede OSHA’s previous guidance on case recording and remain in effect until further notice.
Key Components of OSHA’s Updated COVID-19 Recording Guidance
Under OSHA’s normal record-keeping requirements, COVID-19 is a recordable illness if an employer determines that it is work-related. Under current circumstances, determining whether a case of COVID-19 is work-related ranges from extremely difficult to impossible. OSHA’s updated reporting guidance takes the difficulty of determining whether a case of COVID-19 is work-related into account.
OSHA will take the following factors into account when determining whether an employer met its obligation to determine work-relatedness and record confirmed COVID-19 cases.
1. The reasonableness of the employer's investigation into work-relatedness.
When an employer learns of an employee’s COVID-19 illness, it should make the following inquiries to determine work-relatedness:
- Ask the employee how he/she believes he/she contracted the COVID-19 illness;
- While respecting employee privacy, discuss with the employee his/her work and out-of-work activities that may have led to the COVID-19 illness; and
- Review the employee’s work environment for potential COVID-19 exposure (this review should be informed by any other instances of workers in the work environment contracting COVID-19).
The evidence that a COVID-19 illness was work-related 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.
3. The evidence that a COVID-19 illness was contracted at work.
OSHA will take into account all reasonably available evidence, as described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a simple formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:
An employee’s COVID-19 illness is likely work-related:
- When several cases develop among workers who work closely together and there is no alternative explanation (e.g., sick family members);
- 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; or
- If job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- If the employee is the only worker to contract COVID-19 in their vicinity and their job duties do not include having frequent contact with the general public, regardles of the rate of community spread; or
- If the employee, 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.
This new guidance provides several takeaways for employers as workplaces reopen to employees and the public.
1. Recording a COVID-19 case does not mean the employer violated OSHA standards. It is important for employers to remember that recording a work-related case of COVID-19 does not, in and of itself, mean that the employer violated OSHA standards. However, employers must follow guidelines from OSHA, the CDC, and state and local authorities to prevent the spread of COVID-19 in the workplace. The duty to provide a safe workplace and the duty to report work-related illnesses are related but independent obligations.
2. Develop a policy for investigating and recording consistent with OSHA guidance. Employers should draft or update their policies for investigating and recording confirmed cases of COVID-19 in the workplace. Such policies should conform to the OSHA guidance described above and cover three main topics: (1) Investigation of Confirmed Cases; (2) Review of Evidence to Determine Work-Relatedness; and (3) Recording of Work-Related cases.
3. Stay abreast of changes to federal, state, and local workplace safety requirements. As the public health situation changes, and as more is learned about how the virus spreads, workplace safety requirements are likely to change. While Barran Liebman will continue to publish Alerts on new laws, rules, and regulations, employers should implement a system or policy to stay abreast of changes and ensure compliance. The following non-exhaustive list of resources will aid employers in maintaining up-to-date policies and practices:
- OSHA COVID-19 Information
- Oregon Health Authority COVID-19 Requirements for Employers
- Washington Department of Labor & Industries COVID-19 Requirements for Employers
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2020 by Barran Liebman LLP.
Las Alertas electrónicas son escritas por abogados de Barran Liebman para sus clientes y amigos. Las Alertas no son proveídas como asesoramiento legal, sino solo como anuncios de leyes de empleo, leyes laborales y beneficios de empleo. Si esto ha sido remetido a usted y quisieras empezar a recibir las Alertas directamente, por favor mándanos un correo electrónico o llama a Traci Ray al 503-276-2115. Derechos de autor ©2020 por Barran Liebman LLP.