OSHA Issues New Enforcement Memorandum Reversing Previous Position on “Work-Relatedness” Determinations for Some Employers

On April 16, 2020, Stevens & Lee reported on a recently-issued OSHA Enforcement Memorandum modifying the requirements for when employers must record and report cases of COVID-19 among employees. In that guidance, OSHA stated that it will not enforce the requirement that employers make “work-relatedness“ determinations for COVID-19, except in cases where there is “objective evidence” that a COVID-19 case may be work-related and the evidence was reasonably available to the employer. The exception was intended to address the difficulty employers may face in determining whether a case of COVID-19 was contracted in the workplace given the ubiquity of community spread.

On May 19, 2020, OSHA reversed its position in an updated Enforcement Memorandum. The updated memorandum, which takes effect on May 26, 2020, rescinds the April 16th memorandum and requires employers to make reasonable efforts to determine if a confirmed COVID-19 case is work-related. In assessing whether an employer has made reasonable efforts, OSHA will consider:

  • The reasonableness of the employer’s investigation into work-relatedness
    According to OSHA, employers are not expected to undertake extensive medical inquiries (which may be prohibited under the Americans with Disabilities Act). Instead, “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.”
  • The evidence available to the employer
    OSHA will consider all of the evidence available to an employer at the time it makes a work-relatedness determination. The employer’s determination will be deemed reasonable if, based upon its assessment of that evidence, the employer determines whether it is more likely than not that a COVID-19 illness was contracted at work. If new information is later received, an employer may need to revise or reverse the determination.
  • The evidence that a COVID-19 illness was contracted at work
    Evidence that a COVID-19 illness was contracted at work should be given primary consideration in making the determination. OSHA gives the following examples of evidence that may weigh in favor of or against work-relatedness:
    • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
    • An employee’s COVID-19 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 of COVID-19 and there is no alternative explanation.
    • An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission 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.

The Enforcement Memorandum also states that due weight should be given to any evidence of causation provided by medical providers, public health authorities, or directly by the employee.

According to OSHA, if, after engaging in 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.

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. Stevens & Lee’s attorneys can assist employers in complying with these reporting requirements and navigating other legal issues presented by COVID-19.

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.