As businesses across the United States begin to reopen, employers should be aware of two revised guidance documents the Occupational Safety and Health Administration (OSHA) has released that address enforcing and recording cases involving COVID-19. The two guidance documents, both effective May 26, 2020,1 address how OSHA will respond to employee COVID-19 safety and health complaints as well as how an employer determines under what circumstances an employee who tests positive for COVID-19 is an occupational illness that must be recorded on the employer’s OSHA Form 300 (for those employers required to record occupational injuries and illnesses).
In those geographic areas in which the incidence of COVID-19 has significantly decreased, OSHA will prioritize investigations of employee COVID-19 complaints and conduct site inspections involving such complaints in accordance with OSHA’s standard practice. In those geographic areas in which the incidence of COVID-19 is elevated, OSHA will prioritize site inspections on those circumstances involving employee deaths and imminent danger situations of COVID-19 contagion.
For those employers that are required to record occupational illnesses on OSHA 300 logs,2 an employer must record a case of COVID-19 if (1) the employee tested positive for COVID-19; (2) the case is work-related; and (3) the case involved the employee’s death, days away from work, restricted work, transfer to another job, medical treatment or loss of consciousness.3 All employers, however, are required to report to OSHA work-related COVID-19 employee in-patient hospitalizations within 24 hours of the hospitalization and work-related COVID-19 employee deaths within eight hours of the death (provided that the work-related COVID-19 exposure occurred within the past 30 days).4
COVID-19-Related OSHA Inspections
In response to the numerous employee complaints that OSHA has received about the lack of COVID-19 protections in the workplace, and the additional complaints it expects to receive as more and more employees return to their regular work environments, OSHA has issued new enforcement guidance to its compliance safety and health officers (CSHOs) regarding COVID-19 workplace enforcement. The guidance makes clear that OSHA will prioritize investigating workplace COVID-19 cases. In those geographic areas in which the incidence of COVID-19 has significantly decreased, OSHA may conduct on-site workplace inspections of COVID-19-related employee complaints in addition to conducting on-site inspections involving employee fatalities or imminent danger situations. In those geographic areas in which the incidence of COVID-19 is still high, OSHA will limit its on-site inspections to those involving employee fatalities and imminent danger situations. All CSHOs must notify the OSHA Director of Enforcement Programs of all proposed COVID-19-related citations.
Determining “Work-Relatedness” for COVID-19-Positive Employees
OSHA also has issued enforcement guidance regarding whether an employee who tests positive for COVID-19 likely contracted the virus in the workplace, thus triggering employers’ OSHA occupational illness recording and/or reporting obligations. OSHA defines an employee injury or illness as work-related if an event or exposure in the work environment either caused or contributed to the employee’s condition or significantly aggravated a pre-existing condition. The newly released guidance recognizes the difficulty in applying this standard to a COVID-19 case, given the many potential sources of exposure outside of the workplace. In consideration thereof, the guidance requires an employer to make a “reasonable determination of work-relatedness.”
Employers should consider all reasonably available evidence of work-relatedness. Evidence that an employee’s contraction of COVID-19 was work-related could include
- several cases of COVID-19 developing among employees who work closely together, absent another obvious source of infection outside of the workplace
- a case of COVID-19 developing after an employee’s lengthy close contact with a customer or coworker who has a confirmed case of COVID-19, absent another obvious source of infection outside of the workplace
- a COVID-19 case in an employee whose job duties involve frequent, close exposure to the general public in a locality with ongoing community transmission, absent another obvious source of infection outside of the workplace
On the other hand, a case of COVID-19 may not be work-related
- where an employee had close and frequent contact outside of work with an individual who is not a coworker and who tested positive for COVID-19
- if the employee is the only case of COVID-19 in the workplace and does not have job duties that include frequent contact with the public
An employer should ask such employees how they believe they contracted the illness, provided that it can do so without running afoul of applicable state employee privacy laws. OSHA does not expect employers to “undertake extensive medical inquiries”; however, employers that receive any medical test, evaluation or treatment about the employee’s COVID-19 status must treat such document as a medical record in accordance with 29 C.F.R. § 1910.1020(c)(6). Similarly, employers must treat any record concerning an employee’s exposure to COVID-19 in the workplace as an employee exposure record in accordance with 29 C.F.R. § 1910.1020(c)(5).
After undergoing a reasonable inquiry, if the employer cannot reasonably determine whether it is more likely than not that exposure in the workplace played a causal role with respect to an employee’s positive test for COVID-19, it does not need to record and/or report that COVID-19 case.
Next Steps
To reduce the potential for employee COVID-19 complaints and a subsequent OSHA inspection and potential citation, employers should follow the most up-to-date Centers for Disease Control and Prevention COVID-19 Guidelines, OSHA’s Guidance on Preparing for COVID-19 and specific COVID-19 industry alerts (as applicable) as well as applicable state and local workplace orders when providing employee safeguards against COVID-19 exposure. Determining whether an employee who has tested positive for COVID-19 likely contracted the virus at work will need to be done case-by-case based on the facts available to the employer. The factors set forth in OSHA’s recent enforcement guidance should assist employers in making a reasonable work-relatedness determination.
1 The full text of both guidance documents is available here: Memorandum from Lee Anne Jillings & Patrick J. Kapust, OSHA, “Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19),” May 19, 2020, https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19; Memorandum from Patrick J. Kapust, OSHA, “Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19),” May 19, 2020, https://www.osha.gov/memos/2020-05-19/updated-interim-enforcement-response-plan-coronavirus-disease-2019-covid-19.
2 Employers that employ fewer than 10 employees and employers in low-hazard industries (e.g., retail stores, restaurants, banks, office professions) are not required to record employee injuries and illnesses on OSHA Form 300s unless specifically requested to do so by the Bureau of Labor Statistics. See 29 C.F.R. §§ 1904.1, 1904.2, and Appendix A.
3 29 C.F.R. § 1904.7.
4 29 C.F.R. §1904.39.
5 “Work-related” is defined in the OSHA regulations at 29 CFR § 1904.5.
6 OSHA, Safety and Health Topics, COVID-19, https://www.osha.gov/SLTC/covid-19/.
7 Twenty-two states and U.S. territories operate their own state OSHA enforcement programs for private employers as approved by federal OSHA. Those state OSHA regulations must be at least as stringent as the federal OSHA standards.
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