New OSHA Guidance Regarding COVID-19
As states and the federal government consider lifting restrictions to allow more employees to return to work, OSHA is modifying its requirements for when employers must record and report cases of COVID-19 among employees. The agency has also clarified where it intends to focus inspection efforts until further notice.
OSHA Eases “Work-Relatedness” Determinations for Some Employers
On April 10, 2020, OSHA issued a memorandum intended to address confusion as employers try to determine whether employee cases of COVID-19 infections are work-related. Stevens & Lee has previously reported on OSHA’s recordkeeping and injury/illness reporting requirements. Under those requirements, employers generally must record each employee case of COVID-19 if the case is “work-related.” Employers also must report each work-related COVID-19 case to OSHA if it results in a hospitalization or a fatality.
The new memorandum recognizes that: “In areas where there is ongoing community transmission, employers … may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.” Accordingly, until further notice, for purposes of recordkeeping and reporting obligations, OSHA will not enforce the requirement that employers make work-relatedness determinations regarding employees who contract COVID-19, 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.
Notably, this exception does not apply to employers of workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions, which must continue to make work-relatedness determinations.
According to OSHA, the intent of the enforcement policy is to “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.”
It is important for employers to follow proper recording and reporting guidelines because over-recording instances of COVID-19 could invite unnecessary scrutiny by OSHA, while under-reporting work-related COVID-19 cases may expose employers to serious or willful citations for each COVID-19 case that was not recorded or reported.
OSHA Prioritizes In-Person Inspections for Employers in High-Risk Industries With Formal Complaints of Unprotected COVID-19 Exposure
In a memorandum published on April 13, 2020, OSHA modified how it intends to conduct workplace inspections during the COVID-19 pandemic. OSHA notes that COVID-19-related complaints during the initial months of the outbreak have focused on: (1) concerns relating to lack of PPE such as respirators, gloves and gowns; and (2) complaints about a lack of training on appropriate standards and about possible COVID-19 illnesses in the workplace.
Pursuant to the memorandum, OSHA is prioritizing inspections of workplaces with workers at high risk of exposure to COVID-19, which include hospitals treating infected patients, nursing homes, emergency medical centers, home care or hospice care providers, funeral homes, biomedical laboratories, and medical transport. Formal complaints alleging unprotected exposures to COVID-19 for workers in those high risk settings will generally warrant an in-person inspection.
In all other cases, OSHA will generally not conduct an in-person inspection but will contact the employer by telephone, email or fax and request an explanation of measures the employer is taking to protect workers. Based on the employer’s response, OSHA will then make a decision regarding whether an in-person inspection is necessary.
For more information, please contact Brad Kushner or the Stevens & Lee attorney with whom you regularly work.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.