The Occupational Safety and Health Administration (OSHA) announced yesterday that it will resume enforcing its illness reporting requirements with regard to COVID-19 cases for most employers. The new guidance may be found here.
This is a reversal of the relaxation that OSHA announced six weeks ago that it was putting a hold on most COVID-19 illness reporting, due to the added work it would make for employers to have to determine, in the midst of a pandemic, if an employee illness was a work-related COVID-19 case. (See our previous post on this OSHA Puts a hold on Most COVID-19 Illness Reporting.)
OSHA now says that as of May 26, 2020, employers must record cases of COVID-19 if:
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- They are confirmed as cases of COVID-19, as defined by the CDC;
- They are work-related; and
- They involve one or more of the general recording criteria under the OSH Act.
For more information on COVID-19 recording requirements, see our March 27, 2020 post As COVID-19 Cases Rise … Are Employers Supposed to Record Them as Work-related Illnesses?
OSHA explains its reversal as a response to the availability of more information about the disease and its transmission, the steps taken by government and the private sector to slow the spread, and the initiatives by states to reopen their economies, which will result in more employees returning to the workplace.
OSHA acknowledges it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has been exposed both in and out of the workplace. OSHA has instructed its compliance officers to consider the following factors when evaluating whether an employer has complied with the law in making a reasonable determination of work-relatedness:
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- The reasonableness of the employer’s investigation into work-relatedness. OSHA says that it will be sufficient if the employer asks the employee how they believe they contracted the illness, discusses with the employee (while respecting employee privacy) their work and out-of-work activities that may have led to the illness, and reviews the employee’s work environment for potential exposure, especially if other workers contracted COVID-19.
- The evidence available to the employer.
- The evidence that the illness was contracted at work. OSHA will be looking at factors such as whether several cases developed among workers who work close together, lengthy and close exposure to a customer or co-worker who has a confirmed case of COVID-19, and whether the exposure was likely due to contact with a family member or close friend who is not a co-worker. (Again, see the link above to our March 26, 2020 post.)
Importantly, the OSHA guidance states that the employer does not need to record the illness if after the “reasonable and good faith inquiry” described above, the employer cannot determine whether it is more likely than not that exposure in the workplace caused the COVID-19 case.
OSHA also issued a companion guidance yesterday that provides expanded instruction to compliance officers for handling COVID-19 complaints and reports. This is extensive and may be found at this link.
