On Friday, OSHA issued enforcement guidance regarding employers’ obligations to record COVID-19 cases. According to its previous statements, OSHA’s position is that COVID-19 is a recordable illness under OSHA’s recordkeeping requirements and employers are responsible for recording cases of COVID-19 if:
(1) the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC);
(2) the case is work-related as defined by 29 CFR § 1904.5; and
(3) the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
However, recognizing the difficulty employers have faced during the past several weeks trying to determine whether workers who contracted the disease did so due to exposures at work, and given the ongoing community spread of COVID-19 in many areas of the country, OSHA has decided to significantly curtail its recording requirements for the majority of employers.
Per OSHA’s new guidance, OSHA will not enforce its recordkeeping standards against the majority of employers due to the difficulty in determining whether an employee contracted COVID-19 at work. Employers 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 and record COVID-19-related illnesses. Until further notice, however, OSHA will not require other employers to make work-related determinations unless:
- There is “objective evidence” that a COVID-19 case may be work-related (this could include, for example, a number of cases developing among workers who work closely together without an alternative explanation); and
- The evidence was reasonably available to the employer (examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees).
See the memo here. While no reference is made to reportability in this new guidance, employers may reasonably follow the same framework regarding determinations of work-relatedness in cases of employee deaths or in-patient hospitalizations.
The guidance also provides limited clarification regarding employee privacy, and states that because COVID-19 is an illness, if an employee voluntarily requests that his or her name not be entered on the log, the employer must comply as specified under 29 CFR § 1904.29(b)(7)(vi) by entering “privacy case” in the space normally used for the employee’s name, keeping a separate list of privacy concern cases, among other requirements.
Frantz Ward’s Coronavirus Response Team assists clients in navigating the multitude of issues presented by the current crisis. For assistance in addressing these issues or in developing other strategies to protect your business, please contact Frantz Ward Partners Brian Kelly or Christopher Koehler and they will engage the appropriate members of the response team. In addition, please visit the Frantz Ward Coronavirus Daily Update/Resource Center for up-to-date information and links.