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The Occupational Safety and Health Administration (OSHA) released a new enforcement memo that went into effect May 26, 2020. Generally speaking, employers have certain obligations to make reports to OSHA regarding workplace injuries. Due to the pandemic, OSHA has been addressing employer concerns regarding when and how to record occupational illnesses contracted in the workplace. This new enforcement memo revises OSHA’s previous guidance, and these new guidelines should be used going forward until further notice from OSHA.

Standard Rule

Under OSHA’s record keeping requirements, COVID-19 is a recordable illness. Employers are responsible for recording cases of COVID-19 if all of the following conditions are met:

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

An injury or illness is work -related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.

A case meets the general recording criteria if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. A work-related injury will also meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or licensed healthcare professional, even if it doesn’t result in death, days away from work, etc.

Previous Guidance

OSHA’s previous guidance was implemented to ease the difficulty on employers who had to make determinations about whether employees were contracting COVID-19 due to work-exposure. The old guidance said that OSHA wouldn’t enforce 29 CFR § 1904, which requires employers to make work-related determinations except where there was (1) objective evidence that a COVID-19 case might be work-related and (2) that evidence was reasonably available to the employer.

Objective evidence could include something like an increase in COVID-19 cases among a group of employees who work close together without any other explanation. “Reasonably available” evidence could mean information given to an employer by its employees, or even information that an employer learns in the ordinary course of managing its business and employees, such as receiving an influx of sick leave requests for COVID-19 purposes among that group of closely-working employees.

Current Guidance

The primary change in OSHA’s guidance is related to the evidence an employer has that a COVID-19 cased might be work-related. Previously, employers didn’t have to worry about making work-related determinations except where there was objective evidence that a COVID-19 case might be work-related.

Now, OSHA has removed its emphasis on the need for an employer to have objective evidence of work-relatedness, meaning there is a greater burden on the employer to reasonably investigate and determine whether a COVID-19 case was contracted at work.

The language in the previous guidance suggested a passive role for employers – if an employee comes in with a complaint or you notice an uptick in cases among a specific group of employees, then you should notice there is an issue and address it accordingly. But now OSHA is telling employers that they need to take action right out of the gate. There is no more waiting for the evidence to appear. Employers now have to actively seek it.

What Does This Look Like in Practice?

Thankfully OSHA has given us a road map of what it means to “reasonably investigate.” OSHA makes it clear that employers, particularly small businesses, should not be expected to undertake extensive medical inquiries. This is primarily due to privacy concerns regarding employee medical information, but also the general lack of expertise most employers have when it comes to medical issues. However, employers still have to make a reasonable and good faith inquiry into an employee’s situation when they have contracted COVID-19.

In most circumstances, it is sufficient for an employer to do the following after learning of an employee’s COVID-19 illness:

  1. ask the employee how they believe they contracted the illness
  2. discuss their work and out-of-work activities that may have led to contracting the illness, while still respecting their privacy
  3. review their work environment for potential SARS-CoV-2 exposure

Step #3 should be informed by any other instances of workers in that environment contracting the COVID-19 illness.

After a reasonable and good faith inquiry, if an employer still cannot determine whether it is more likely than not that exposure in the workplace played a causal role with regards to a COVID-19 case, the employer doesn’t need to record that COVID-19 illness.

What is OSHA Looking For?

The new guidance also provides us with some key points that OSHA takes into consideration when investigating the sufficiency of an employer’s efforts to make work-related determinations. To start with, OSHA is going to look into whether an employer followed the steps above regarding the reasonable inquiry into an employee’s case of COVID-19. But the agency has also been instructed to look at other factors, as well.

OSHA is aware that not all information is readily available to employers. For that reason, the agency takes into account what information was reasonably available to the employer at the time it made its work-relatedness determination. If an employer later learns more information related to an employee’s illness, then that information should be taken into account as well when the employer is making a work-related determination. OSHA is ultimately looking to see whether employers are taking in all of the information at their disposal to make sound decisions.

The agency is also instructed to take into account what the nature of the evidence is that was available to an employer at the time they made their work-related determination, and whether that information should have put the employer on notice to record the illness. There is no hard and fast rule, but the new guidance does identify certain types of information that may weigh in favor of or against work-relatedness.

For example, OSHA will consider COVID-19 illnesses to be “likely work-related” when several cases develop among employees who work closely together and there is no alternative explanation. Similarly, an employee’s COVID-19 illness is likely work-related if it’s contracted shortly after lengthy, close exposure to a certain customer or coworker who has a confirmed case of the illness or when the employee’s job duties include having frequent, close exposure to the general public in a location that has ongoing community transmission and there is no alternative explanation.

An employee’s COVID-19 illness is likely not work-related if the employee is the only one who contracted the illness in their vicinity and their job duties don’t include frequent contact with the general public. The same thing goes for when an employee closely and frequently associates with someone outside of work (family member, significant other, close friend) who has COVID-19, isn’t a coworker, and exposes the employee during the period in which the sick individual is likely infectious.

Other Considerations

Given all of the above information, keeping up with COVID-19 in the workplace may seem overwhelming, and in many ways it is. But it is important to remember that recording a COVID-19 illness does not, in and of itself, mean an employer has violated any OSHA standard. This guidance is only for record keeping purposes, not for when you have to make a report to OSHA.

Also, standard OSHA regulations state that employers with 10 or fewer employees, and certain employers in low-hazard industries, have no recording obligations. These employers need only report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.

Should you have any questions about recording vs reporting for OSHA purposes, whether you are exempt from any obligations under OSHA regulations, or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

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