On May 19, 2020, the U.S. Occupational Safety and Health Administration (OSHA) issued its Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19). This OSHA Memorandum updates for all Compliance Safety and Health Officers (CSHOs) what should be considered when enforcing the requirement that employers record occupational illnesses, specifically COVID-19. As of May 26, the prior guidance issued on April 10 will be rescinded and replaced by this update.
The requirements for an employer to record COVID-19 as a “recordable illness” have remained essentially unchanged in the revised guidance. Record if the case:
- Is confirmed as COVID-19 illness;
- Is work-related as defined by 29 CFR 1904.5 (see further explanation below); and
- Involves one or more of the general recording criteria in 29 CFR 1904.7 (i.e., resulted in fatality, days away from work, restricted duty or medical treatment beyond first aid).
Some of the recommendations have changed. The revised guidance now specifically states a COVID-19 illness is one that meets the CDC definition of “at least one respiratory specimen that tested positive for SARS-CoV-2.” More importantly, this revised enforcement guidance requires employers to determine if a confirmed COVID-19 case is work-related.
Prior to this update, OSHA had focused on employers in the healthcare industry, emergency response organizations and correctional institutions. Because of the recent increased incidence throughout all industries, the efforts by government and businesses to adapt to new and safer ways of doing business, and the current steps to reopen economies and return workforces, OSHA now advises all employers to determine whether employee COVID-19
illnesses are work-related and thus recordable.
OSHA is giving its CSHOs the following considerations to determine if an employer made a “reasonable determination” of work-relatedness:
The reasonableness of the employer’s investigation into work-relatedness (recognizing that factors such as the size of a business, medical privacy concerns and the lack of expertise in this area that most businesses will face);
The evidence available to the employer (understanding that this work-relatedness determination will depend on what information was reasonably available to the employer at the time of its investigation); and
- The evidence that the COVID-19 case was contracted at work.
It is this last consideration where OSHA, cautioning that it is not reducing this to a “ready formula,” gives insight into what evidence would weigh in favor or weigh against work-relatedness. A COVID-19 illness is likely work-related if (1) several cases develop among workers who work closely together without alternative explanation; (2) if the job duties require frequent, close exposure to the general public in a location with ongoing community spread; and (3) if the illness is contracted shortly after lengthy, close exposure to a particular customer or coworker with a confirmed case of COVID-19.
On the other hand, OSHA considers a COVID-19 illness likely not work-related if (1) he or she is
the only worker to contract the illness in his or her work vicinity and the duties do not require frequent, close exposure to the general public; and (2) if the employee, outside of the workplace, frequently and closely associates with someone who has COVID-19, is not a coworker and exposed the person during a period in which that person was likely infectious.
If, after a good faith and reasonable inquiry under these considerations, an employer cannot determine whether or not a confirmed COVID-19 case is more than likely attributable to workplace exposure, then the employer need not record that illness.
If you, as the employer, make a determination after this investigation that a confirmed case of COVID-19 is more than likely caused by workplace exposure and deem it recordable, this may raise the issue of an arguably compensable Ohio workers’ compensation claim, in which
case you should contact Calfee’s workers’ compensation professionals to guide you through next steps on whether the employee may need assistance in filing a claim.
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