All information in this COVID-19 Response Resource issue is effective as of May 22, 2020.
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has announced two new enforcement policy revisions related to its COVID-19 workplace inspections of employers and employer’s recording requirements:
1) OSHA issued a new enforcement guidance memo regarding workplace inspections entitled Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19). This will take effect on May 26, 2020.
2) OSHA also revised its enforcement guidance for recording occupational illnesses with respect to cases of COVID-19. The new guidance is effective May 26, 2020, and clarifies that COVID-19 is potentially a recordable illness. Under the guidance, employers are responsible for recording certain cases of COVID-19.
The new guidance emphasizes that “[e]liminating hazards from COVID-19 remains a top priority for OSHA.” OSHA is taking different approaches based on the amount of community spread in an area.
- In areas where community spread has significantly decreased, OSHA will continue to prioritize COVID cases, use non-formal phone or fax investigations or rapid response investigations.
- In areas experiencing either sustained elevated community transmissions or a resurgence, OSHA will continue to prioritize COVID-19 fatalities and imminent danger exposure for inspection and on-site inspections in high-risk workplaces. Inspections may begin remotely with the expectation of an on-site investigation.
If OSHA contacts your business, it is important that you cooperate and contact your legal counsel.
Reporting COVID Cases
OSHA revised its enforcement guidance for recording occupational illnesses with respect to cases of COVID-19. The new guidance is effective May 26, 2020, and clarifies that COVID-19 is potentially a recordable illness. Under the guidance, employers are responsible for recording cases of COVID-19 if the following criteria are met:
a. The case is lab-confirmed as a coronavirus illness under CDC guidelines.
b. The case is “work related” under 29 CFR 1904.5. OSHA considers a case “work related” if an event or exposure in the work environment either caused or contributed to the employee getting COVID-19.
c. The case involves death of the employee, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness, as described more fully in 29 CFR 1904.7
Employers with fewer than 10 employees and some employers in low hazard industries are not subject to the recording requirements unless COVID-19 results in the employee’s death, in-patient hospitalization, amputation or loss of an eye.
The new guidance requires employers to determine whether employee COVID-19 illnesses are work-related, although it recognizes that, given community spread and potential exposure outside the workplace, it may be difficult to determine whether the illness is work-related. Accordingly, OSHA clarifies that recording a COVID-19 illness does not by itself signify that an employer has violated any OSHA standard. OSHA will consider whether the employer’s investigation into whether the illness is workplace-related was reasonable under the circumstances and with the information available to the employer. OSHA also provides criteria to determine whether COVID-19 was contracted at work.
OSHA’s new guidance highlights the importance of understanding OSHA inspections and reporting obligations; employer advance planning; selection of a COVID-19 coordinator; implementation of COVID-19 policies regarding employee screening for COVID-19; contact-tracing after an employee, customer or vendor tests positive; cleaning, physical distancing, mask requirements and other prevention policies.
Parsons Behle & Latimer can assist employers in implementing and enforcing policies and managing the employer’s response to a COVID-19 positive test in the workplace.
For more information, contact Susan Motschiedler by calling (801) 536-6923 or send an email to email@example.com or Christina Jepson by calling (801) 536-6820 or send an email to firstname.lastname@example.org.