OSHA | Revised Enforcement Guidance for COVID-19
This week, OSHA published revised guidance for employers on when they need to record the illness, of an employee who has contracted the Coronavirus, as a work-related illness for the purposes of OSHA’s work illness and injury recordkeeping requirements. Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness if:
- The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
- The case is work-related as defined by 29 CFR § 1904.5; and
- The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
Given the rate of infection and the ease with which the virus is transmitted, employers have found it particularly challenging to determine if an employee, who is diagnosed with COVID-19, contracted the virus at work. In making that determination, employers must make a “reasonable determination” of work-relatedness. In this guidance, OSHA outlines the criteria that Compliance Safety and Health Officers (CSHOs) will utilize to evaluate if the employer met the “reasonable determination”, as required by the Regulations. Those criteria include:
- The reasonableness of the employer’s investigation into work-relatedness
- The evidence available to the employer at the time of the work-relatedness determination
- The evidence that the illness was contracted at work
The guidance highlights that employers can make limited inquires to employees about their exposure provided they respect the employee’s privacy and keep the medical inquiries limited to the COVID-19 transmission factors. Additionally, the guidance provides some examples of the types of evidence an employer may consider in making a work-relatedness determination. These include if the employee has come in contact or worked in close proximity with an individual who has a confirmed diagnosis of COVID-19 or employees who have frequent contact with the public. However, employers can also consider if an employee has or had close contact outside of work with a family member or close friend who has a confirmed cased. In that instance, it may suggest that the illness is not work-related.
After conducting a reasonable investigation about work-relatedness, if the employer cannot make the determination that the employee’s illness is work-related, then they are not required to record the illness under OSHA’s recordkeeping requirements.
If you require assistance with this guidance or any other human resources or compliance matters, be sure to contact the AAA for assistance.