News & Insights
Jun 5, 2020
On the heels of growing pressure and mounting criticism from Congress and labor unions that the Occupational Safety and Health Administration (OSHA) was not doing enough to protect workers, OSHA issued new guidance expanding employers’ reporting requirements related to COVID illnesses.
Under guidance issued May 26, OSHA now requires all employers normally subject to OSHA’s recording requirements, not just those in the health care industry, emergency-response organizations and correctional institutions, to investigate whether a COVID case was work-related. Employer’s with 10 or fewer employees and certain employers in low hazard industries that have no OSHA recording obligations need only report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye. Following that investigation, employers must report COVID illnesses on OSHA 300 logs when:
Though OSHA acknowledges the difficulty in determining whether a COVID case is actually work-related, it still expects employers to make a “reasonable determination” on whether a case originated at work. Knowing that most employers are not medical professionals, OSHA has indicated that, in most cases, an employer will satisfy its compliance obligations by:
According to OSHA, COVID is more likely work-related when:
It is less likely work-related when:
OSHA’s new requirement that employers must inquire into certain aspects of an employee’s health in order to make a “reasonable determination” about the work-relatedness of a COVID illness, must be carefully balanced with the privacy rights of employees. A well-meaning employer attempting to comply with OSHA’s new guidance could unintentionally violate other federal protections such as the Americans with Disabilities Act if it asks questions that probe into an employee’s medical history. Accordingly, employers should not inquire about an employee’s underlying health condition or those of family members, and it should limit the investigation of non-work activities to those directly related to how the employee may have contracted COVID.
Ultimately, OSHA expects an employer to only make a reasonableness determination when a confirmed case exists and continue to follow CDC guidance having in place safety protocols, a plan for reducing the spread of COVID, and a plan for responding to a confirmed case.
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