Effective May 26, 2020, the Occupational Safety and Health Administration (OSHA) revised its (interim) enforcement guidance for its inspectors and personnel use when investigating whether an employer properly classified a workplace illness involving COVID-19. This guidance expands and replaces the version OSHA issued on April 10 -- it does not affect the agency’s broader enforcement guidance for cases considering whether an employer unreasonably exposed employees to COVID-19 (which I wrote about here), although it’s easy to imagine scenarios where inspectors could be called upon to investigate both types of potential violations. OSHA states this guidance will remain effective until the present public health crisis ends, unless revised again.
What steps are employers to follow when checking for occupational COVID-19 cases?
OSHA considers workplace-related (occupational) COVID-19 cases to be recordable occupational illnesses, for purposes of the agency’s injury and illness (I&I) recording rules. (I’ve discussed aspects of these rules several times, most recently here). Accordingly, employers’ first task is to determine if a COVID-19 I&I has occurred. OSHA’s guidance identifies the following steps:
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Confirm the case is COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
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Determine the case is work-related as defined by OSHA’s I&I rules (29 CFR § 1904.5); and
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Determine the case involves one or more of the general recording criteria set forth in OSHA’s I&I rules (29 CFR § 1904.7).
OSHA’s superseded guidance identified this 3-step process, but provided no guidance on how to follow it effectively. OSHA noted then and continues to note that confirmation of COVID-19 infections is becoming faster and more practical – so step 1 will be easier – but that the underlying determination whether an infection is work-relatedness still depends on employees’ workplace and non-workplace exposures.
OSHA has also added a reminder that I&I recording requirements apply only to employers with more than 10 employees (unless a reportable hospitalization or death occurs).
What considerations will OSHA apply to evaluate employer determinations?
OSHA’s new guidance directs its staff to apply the following considerations to their review of employer determinations – remember that this issue will arise when there’s a likelihood that an employer improperly missed a COVID infection, or mis-classified one as non-work-related and therefore not logged as an I&I case. The considerations consist of the following:
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The reasonableness of the employer's investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee's COVID-19 illness, to:
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ask the employee how he/she believes the COVID-19 illness was contracted;
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while respecting employee privacy, discuss work and out-of-work activities that may have led to the COVID-19 illness; and
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review the employee's work environment for potential COVID-19 exposure. This review should be informed by any other instances of workers in that environment contracting COVID-19 illness.
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The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer when it made its work-relatedness determination. If the employer later learns additional relevant information, then that information should also be taken into account when determining whether an employer made a reasonable work-relatedness determination.
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The evidence that a COVID-19 illness was contracted at work. OSHA personnel should take into account all reasonably available evidence, as described above, to determine whether an employer complied with its I&I recording obligation. The guidance notes that this cannot be reduced to a ready formula, but provides examples of types of evidence that may weigh in favor of or against work-relatedness. For instance:
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COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
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An employee's COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
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An employee's COVID-19 illness is likely work-related if job duties include frequent, close exposure to the general public in a locality with ongoing community transmission, and there is no alternative explanation.
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An employee's COVID-19 illness is likely not work-related if he or she is the only worker to contract COVID-19 in her vicinity, and job duties do not include frequent contact with the general public, regardless of the rate of community spread.
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An employee's COVID-19 illness is likely not work-related if he or she, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who: has COVID-19; is not a coworker, and exposes the employee during the period in which the individual is likely infectious.
OSHA directs its personnel to “give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.” Note that OSHA does not provide any guidance about when there is "no alternative explanation", so employers retain some flexibility/uncertainty.
What’s next?
As I noted above, this guidance is to remain in place for the time being. Readers should note that it only becomes directly relevant if OSHA is inspecting or investigating a workplace where COVID-19-related I&I issues arise. The most obvious is response to a complaint or other indication that a workplace has COVID-19 infections. For example, if there’s a cluster of infections at a workplace, I&I recording might be useful to indicate when the employer knew – or should have known or at least reasonably expected – that one or more workers were infected, and others thereby at risk.
Self-Assessment Checklist
Does the organization have operations that are still open and staffed by employees or other workers?
If so, has the organization assessed these operations for COVID-19 risks to employees?
If so, has the organization implemented adequate information and precautionary measures (e.g., equipment and procedures recommended by the CDC and OSHA guidelines?
If so, is the organization ready to assess employee illnesses for possible COVID-19 infections, and if any arise to be able to evaluate whether the illnesses are work-related?
Where Can I Go For More Information?
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OSHA
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I provided a number of web resources for prevention in my March 25 blog linked here.
STP ComplianceEHS (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements.
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com
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