OSHA Update: COVID-19

New guidance from the Occupational Health and Safety Administration (OSHA) regarding COVID-19 became effective on May 26, 2020. This new guidance rescinds and replaces the previous COVID-19 guidance issued on April 10, 2020, and is intended to be effective until further notice. Under the new guidance, a COVID-19 illness is a recordable incident that must be recorded by employers if the following criteria are met:

The case meets the CDC definition of a confirmed positive, which is defined as a positive respiratory specimen for SARS-CoV-2
The case is work-related, which is defined by 29 C.F.R. 1904.5 as an illness where an event or exposure in the work environment caused or contributed to the resulting condition or significant aggravation of a pre-existing condition. Notably, the usual work-relatedness exceptions for the common cold and flu do not apply to COVID-1; and
The case involves one or more of the following:
1. the illness results in days away from work;
2. the illness results in death;
3. the illness results in restricted work or transfer to another job;
4. the illness requires medical treatment beyond first aid;
5. the illness involves a loss of consciousness; and
6. the illness does not result in any of the aforementioned, but is a significant illness diagnosed by a physician or other licensed healthcare professional.

Pursuant to existing regulations, employers with less than ten employees continuously throughout the previous calendar year that have not otherwise been notified they are required to engage in OSHA reporting generally are not required to record/report COVID-19 illnesses unless there is a resulting fatality, in-patient hospitalization, amputation or loss of an eye. Similarly, employers that are typically exempt under 29 C.F.R. 1904.2 are not required to exempt COVID-19 illnesses unless there is a resulting fatality, in-patient hospitalization, amputation or loss of an eye.
OSHA is using its enforcement discretion and has indicated compliance officers will apply the following considerations:

The reasonableness of the employer’s investigation –
1. Small employers are generally not expected to undertake extensive medical inquiries.
2. It will generally be sufficient to:
  1. ask the employee how he or she believes he may have contracted COVID-19;
  2. discuss with the employee the work and out-of-work activities that may have led to the illness, while respecting his or her privacy; and
  3. review the employee’s work environment for potential exposure, informed by any other instances of coworkers in that environment contracting the illness.
The evidence available to the employer –
1. 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 the work-relatedness determination was made.
2. However, if the employer later learns more information related to an employee’s COVID-19 illness, that information needs to be taken into account as well to determine whether the work-relatedness determination was reasonable.
The evidence the COVID-19 illness was contracted at work –
1. All reasonably available evidence must be taken into account to determine whether the employer has complied with its obligations.

When performing this investigation, it is very important for employers to remember the guidance issued by the Equal Employment Opportunity Commission (EEOC) related to COVID-19 inquiries to ensure that employers are in compliance with federal privacy regulations, the Americans with Disabilities Act, and other related federal laws.
While there is no definitive formula available for determining the work-relatedness of a COVID-19 illness, OSHA has provided certain evidence that may weigh in favor of or against work-relatedness findings. The OSHA guidance states:

COVID-19 illness are likely work-related when there are several cases that develop around coworkers that work closely together and there is no alternative explanation;
COVID-19 illnesses are likely work-related when they are contracted shortly after exposure to a customer or coworker with a confirmed case of COVID-19 and there is no alternative explanation;
COVID-19 illnesses are likely work-related if the worker’s job duties include frequent, close exposure to the general public in a locality with ongoing community transmission and there is no available reasonable alternative explanation;
COVID-19 illnesses are likely not work-related if the worker is the only worker to contract the disease in his or her vicinity and his or her job duties do not include frequent contact with the general public;
COVID-19 illnesses are likely not work-related if he or she, outside of the workplace, frequently associates with someone who has COVID-19, who is not a coworker; and who exposed the employee during the period in which he or she was likely infectious.

Regardless of the circumstances, however, all due weight must be given to causation evidence issued by medical providers, public health authorities, or the employee himself or herself.

If the employer, in good faith, engages in the reasonable inquiry outlined by the guidance, but cannot determine whether it is more likely than not that workplace exposure was involved in the employee contracting the COVID -19 illness, the employer is not required to record the COVID-19 illness. However, the employer must exercise caution in safeguarding employee health and generally comply with all other applicable OSHA regulations. All employers should frequently check the OSHA website to stay up to date on new guidance, as well as pay attention to guidance and recommendations issued by the CDC and other federal agencies.

The pandemic is an unusual situation that will likely have long-term impacts on employers in new and unexpected ways. Internal recording procedures may need to adapt to ensure COVID-19 is adequately captured according to the OSHA guidance. Increased reports to OSHA of recordable illnesses caused by COVID-19 may impact e-mods and increase insurance premiums in the years to come for workers’ compensation coverage. All employers should ensure they have COVID-19 response plans in place that safeguard employee health and reduce chances for exposure that may ultimately have OSHA implications. Strategies to mitigate the risks associated with COVID-19 exposure in the workplace may include:

Encouraging employees to stay home when sick;
Implementing flexible leave policies to encourage ill employees to stay home;
Encouraging teleworking to the extent it is compatible with your business model;
Implement staggered work schedules;
Increase sanitizing protocols, especially in high traffic areas;
Provide employees with masks and hand-sanitizer;
Encourage good hygiene and handwashing practices;
Limiting contact between coworkers; and
Limiting contact with the general public.

While all employers must be alert and work to mitigate employees’ exposure to COVID-19, employers in high-risk industries (such as healthcare and personal care) and industries that involve a great deal of contact with other coworkers or the general public, should use extra caution to ensure all employees are adequately provided necessary personal protective equipment and COVID-19 preventative measures and response plans are being appropriately implemented.

[1] Enforcement Memos, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19). Available at: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19

[2] Id.

[3] Id; See also: CDC.gov for the most up to date information on confirmed COVID testing.

[4] Under 29 C.F.R. 1904.5(b)(1) the work environment is an establishment or other location where one or more employees are present as a condition of their employment, including physical locations as well as equipment and/ materials used by the employees in the course of their employment

[5] Enforcement Memos, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19). Available at: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19 ; 29 C.F.R. 1904.5.

[6] Enforcement Memos, Updated Interim Response Plan for Coronavirus Disease (COVID-19), available at: https://www.osha.gov/memos/2020-05-19/updated-interim-enforcement-response-plan-coronavirus-disease-2019-covid-19 at Attachment 1, Section III.

[7] Enforcement Memos, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19). Available at: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19 ; 29 C.F.R. 1904.7.

[8] Id; See also: 29 C.F.R. 1904.1.

[9] See: 29 C.F.R. 1904.1; 29 C.F.R. 1904.2; Enforcement Memos, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19). Available at: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19

[10] Enforcement Memos, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19). Available at: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19

[11] Id.

[12] More information on the EEOC guidance, the ADA, and related laws can be found here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

[13] Id.

[14] Id.

[15] Id.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.

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OSHA Update: COVID-19