OSHA issues new guidance ramping up enforcement related to COVID-19

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:

1. There is a confirmed case;
2. It is work-related; and
3. The illness results in one or more of the OSHA recordable criteria (i.e., death, days away from work, restricted work or the transfer to another job, medical treatment beyond first aid, or the loss of consciousness).

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:

• Asking an employee how he or she believes the illness was contracted;
• Asking an employee about his or her activities (both inside and outside of work) and whether those activities may have led to the illness; and
• Looking at the work environment, including the employee’s work area, to determine whether certain areas pose a higher risk of exposure (e.g., crowded areas and those that do not allow for social distancing) and whether other employees assigned to the same area/floor have also fallen ill.
• In analyzing an employer’s reasonableness determination, several assumptions can be made by an employer to determine whether an illness is more likely or less likely to be work-related.

According to OSHA, COVID is more likely work-related when:

• Multiple cases develop among employees working together or within the same vicinity;
• It is contracted shortly after close exposure to a customer or coworker with the illness; and
• An employee’s job responsibilities require him/her to be in close proximity to members of a community where there is ongoing or heightened community transmission.

It is less likely work-related when:

• There is a single case within a group of employees that work closely together;
• An employee’s job responsibilities to not require frequent interactions with the public; and
• An employee frequently interacts with others, including friends and family members, who have contracted the illness.

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.