As nonessential workplaces begin to reopen across the county, OSHA has updated its guidance to enforce recordkeeping and reporting requirements for all employers in response to the COVID-19 pandemic, as well as increase onsite inspections. Specifically, OSHA issued revised enforcement guidance for recording cases of COVID-19. In addition, OSHA updated its interim enforcement response plan for dealing with workplace investigations during the COVID-19 pandemic.
These updates went into effect on May 26,2020, and will remain in effect until further notice and is time-limited to the current COVID-19 public health crisis. These requirements replace the previous interim enforcement response plan and recordkeeping guidance issued in April 2020.
Revised Recordable Requirements
Back in April, OSHA was not requiring most non-healthcare employers to determine “work-relatedness” of COVID-19 cases unless the employer had objective evidence that the cases were work-related.
Effective May 26, 2020, OSHA has now determined that COVID-19 is a recordable illness for all applicable employers* (as a respiratory illness on an OSHA Form 300) if it—
- Is confirmed to be COVID-19 as defined by the CDC;
- Is work-related as defined by 29 CFR 1904.5; and
- Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.
The updated guidance continues to recognize the difficulty in determining whether a COVID-19 case is work related especially when an employee has experienced potential exposure both in and out of the workplace - but it does place additional obligations on most employers to conduct this analysis and to make a reasonable determination.
Therefore, if an employee is diagnosed with COVID-19, employers are expected to conduct a reasonable investigation by—
- Asking how the employee believes he or she contracted the illness;
- Discussing how the employee’s work and out-of-work activities may have led to the illness, and
- Reviewing the work environment for potential circumstances of exposure.
MRA developed a sample COVID-19 Work-Relatedness Investigation Report to assist employers with documenting findings from their investigation.
The guidance instructs OSHA inspectors to assess the reasonableness of the employer’s investigation into work-relatedness, the evidence available to the employer, and the evidence that a COVID-19 illness was contracted at work. According to guidance, if “the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role,” then the employer is not required to record the COVID-19 illness.
*OSHA noted that under existing regulations, employers with 10 or fewer employees and certain employers in low hazard industries do not have recording obligations; they need only report work-related coronavirus illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.
Enforcement Response Plan
The updated enforcement response plan acknowledges that states have started reopening and nonessential employees are returning to the workplace. Therefore, OSHA is increasing in-person inspections at all types of workplaces. However, OSHA will adopt different response measures based on whether “community spread of COVID-19 has significantly decreased” or whether a given geographic area continues to experience “sustained elevated community transmission or a resurgence” of COVID-19 transmission.
- In areas where the spread of the virus has decreased, OSHA will resume its normal inspection planning policy and will continue to prioritize COVID-19 cases.
- In areas with continued high levels of virus transmission, OSHA will prioritize COVID-19 fatalities and “imminent danger exposures.” OSHA will focus on-site inspections in high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19, as well as workplaces with high numbers of complaints or known COVID-19 cases.
Source: CCH/Wolters Kluwer, OSHA.gov