Seyfarth Synopsis: On April 10, 2020, OSHA released new interim guidance to Compliance Safety and Health Officers (CSHOs) for enforcing the requirements of 29 CFR Part 1904 with respect to recording occupational illnesses, related specifically to cases of the Coronavirus Disease (COVID-19). This guidance took effect immediately and will remain in effect until further notice.

Recognizing that work-relatedness determinations are very difficult to make in areas experiencing community spread of COVID-19, OSHA’s interim guidance seeks to provide greater certainty to the regulated community. In that regard, OSHA’s interim guidance makes clear that, outside of certain settings where work-related exposures are more likely, employers will only be required to record COVID-19 infections in limited circumstances. Specifically, the guidance states that while “[e]mployers of workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904, . . . OSHA will not enforce 29 CFR § 1904 to require other employers to make the same work-relatedness determinations” except where there is “objective evidence” that a COVID-19 case may be work-related and “the evidence was reasonably available” to the employer.  As an example of “objective evidence,” the guidance alludes to an outbreak amongst workers who work closely together without an alternative explanation.

According to OSHA the “enforcement policy will 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.”  In an environment awash with uncertainty and unprecedented challenges for employers, OSHA guidance and the added clarity it provides should be welcome news.