As businesses begin to reopen and COVID-19 continues to spread, the Occupational Safety and Health Administration (“OSHA”) issued a Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 on May 19, 2020.
On May 26, 2020, OSHA’s previous guidance, issued April 10, 2020, will be rescinded, and the revised guidance will go into effect and remain in effect until further notice.
As with the previous guidance, the updated guidance acknowledges that in many instances, it is difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace. Regardless, the updated guidance places new obligations on employers to make reasonable efforts to ascertain work-relatedness.
Furthermore, unlike the prior guidance that carved out exceptions for non-healthcare employers, the updated guidance applies to employers in all industry sectors who are required to maintain a 300 Log.
Pursuant to OSHA regulations, a COVID-19 illness is recordable on an OSHA 300 Log if all of the following apply:
The updated guidance focuses on work-relatedness determinations and departs from the April 2020 guidance that required non-healthcare employers to record coronavirus illnesses only if they had “objective evidence” that the illness was work-related.
In determining whether any employer has made a reasonable determination of work-relatedness, OSHA will now consider the following criteria.
Reasonableness of employer’s investigation into work-relatedness
OSHA notes that employers are not expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. When an employer learns of an employee’s COVID-19 illness, OSHA says that it is usually sufficient to:
Evidence available to employer
In determining whether an employer made a reasonable work-relatedness determination, OSHA will consider the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information, then that information must also be taken into account by the employer, and such information will also be considered by OSHA.
Evidence that a COVID-19 illness was or was not contracted at work
The guidance recognizes that there is no exact formula to determine whether a COVID-19 illness is work-related. OSHA states that it will give due weight to any evidence of causation provided by medical providers, public health authorities, or the employee. The guidance also provides examples of evidence that may weigh in favor of work-relatedness:
OSHA also notes that the following evidence may weigh against work-relatedness:
If, after a reasonable and good faith inquiry such as described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role in the particular COVID-19 illness, the employer does not have to record that COVID-19 illness.
The updated guidance imposes additional obligations on employers from all sectors to conduct reasonable and good faith inquiries to determine the work-relatedness of employees’ COVID-19 illnesses. However, it also provides authority not to record if, after such a reasonable and good faith inquiry, a work-related determination cannot be made.
Interestingly, and unfortunately, while both the April and May guidance documents address recordkeeping, neither addresses and provides clarity on OSHA reporting obligations for COVID-19 illnesses.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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