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COVID-19: Revised OSHA Enforcement Guidance on Inspections and Recordkeeping

on Friday, 12 June 2020 in Covid-19 Information Hub

The Occupational Safety and Health Administration (OSHA) recently issued two revised enforcement policies as economies reopen in states around the country.  First, OSHA is increasing on-site inspections in all types of workplaces.  Second, OSHA has revised its enforcement policy for recording cases of COVID-19 in the workplace.

Increasing On-Site Inspections

Previous OSHA guidance issued in April explained that the agency’s use of on-site workplace inspection resources depended upon the severity and risk of COVID-19 exposure in certain workplaces.  As a result, OSHA prioritized conducting on-site workplace inspections of health care facilities.  Meanwhile, OSHA addressed safety and health complaints concerning lower risk employers by the “phone/fax” method; that is, sending the employer a letter describing the alleged hazard and requiring the employer’s written response, supported with documentary evidence.

New enforcement guidance places less emphasis on the employer’s type of workplace and more emphasis on employer’s geographic location.  For those areas of the country experiencing sustained or increased levels of COVID-19 community spread, OSHA Area Directors have the discretion to focus on-site inspection resources on:

  • COVID-19 fatalities and imminent danger exposure cases in high-risk workplaces (especially health care settings); and
  • Workplaces with a high number of OSHA complaints regarding COVID-19, regardless of the type of workplace.

Additionally, OSHA will develop a program to conduct inspections from a randomized sampling of fatality or imminent danger cases where inspections were not initially conducted due to resource limitations.

In areas experiencing a significant decline in COVID-19 transmission, employers should prepare for OSHA to return to normal on-site investigation practices.  While OSHA will continue to focus on COVID-19 cases in these areas, the agency’s increase in available resources allows Area Directors to bypass the “phone/fax” process and proceed directly to conducting on-site inspections.

In light of this, employers should ensure that they are implementing and monitoring the effectiveness of their COVID-19 safety controls for employees returning to work.  Failure to do so might lead to an OSHA on-site inspection.

COVID-19 Recordkeeping

In addition to preparing for the agency’s efforts to increase on-site investigations, employers should be aware of revisions to OSHA’s enforcement guidance regarding the recording of COVID-19 cases on the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report).

Under general recordkeeping requirements, COVID-19 could be considered a recordable injury or illness on an employer’s OSHA 300 logs if:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
  2. The case is work-related, as defined by 29 CFR § 1904.5; and
  3. The case involves one or more of the following general recording criteria set forth in 29 CFR § 1904.7: death; days away from work; restricted work or transfer to another job; medical treatment beyond first aid; or loss of consciousness.

Previous guidance issued on April 10, 2020 relieved most employers of making the “work-related” determination due to the difficulty in ascertaining whether a COVID-19 exposure was job-related.  OSHA only required employers in the health care industry, emergency response organizations, and correctional institutions to make a work-relatedness determination.

OSHA revised this guidance as employees continue to return to the workplace and the public better understands COVID-19 transmission and infection prevention.  Every employer must now evaluate whether a COVID-19 case is work-related.

The agency recognizes employers’ challenge in making this determination.  Accordingly, OSHA provides the following considerations it will use to determine the reasonableness of an employer’s work-relatedness decision:

  • The reasonableness of the employer’s investigation into work-relatedness. Given employees’ privacy concerns and employers’ lack of medical expertise, OSHA notes that employers should not undertake extensive medical inquiries.  If an employer learns of an employee’s COVID-19 illness, it is sufficient to:  (1) ask the employee how the employee believes he or she contracted the illness; (2) while respecting employee privacy, discuss the employee’s work and out-of-work activities that may have led to the illness; and (3) review the employee’s work environment for potential COVID-19 exposure and any other instances of workers in the environment becoming ill due to COVID-19.
  • The evidence reasonably available at the time the employer made its work-relatedness determination. When making a work-relatedness determination, the employer should consider (1) the information reasonably available to the employer at the time it made its determination, as well as (2) any additional information related to an employee’s COVID-19 illness that the employer discovers after initially learning of the employee’s positive diagnosis.  In other words, an employer’s to conclusion that a case is not work-related may not be reasonable if the employer did not account for subsequent information it received after its initial determination.
  • Evidence that the COVID-19 illness was contracted at work. OSHA explains that this cannot be reduced to a formula.  Nevertheless, the agency states that the following factors could weigh in favor of a determination of work-relatedness:
    • Several cases develop among workers who work closely together and there is no alternative explanation;
    • COVID-19 was contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case and there is no alternative explanation; or
    • The employee’s duties include frequent, close exposure to the general public in a locality with ongoing community transmission.

      Other factors weigh against a finding work-relatedness, including:

    • The employee is the only employee to contract COVID-19 in his/her vicinity and the employee’s job duties do not include frequent contact with the general public, regardless of the community’s transmission rates; or
    • The employee, outside of the workplace, frequently associates with someone (g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker; and (3) exposes the employee during the period in which the individual is likely infectious.

As a reminder, employers with 10 or fewer employees and employers in certain low-hazard industries are not required to make these recordings in an OSHA 300 log other than to report to OSHA any work-related COVID-19 illness that results in (1) a fatality, or (2) an employee’s in-patient hospitalization, amputation, or loss of an eye.

Employers should also remember that recording a COVID-19 illness does not, by itself, mean that they violated an OSHA standard.  Rather, employers might simply struggle with reviewing or assessing whether a particular case is work-related.  The above guidance should help employers make such determinations.

If you have any questions regarding OSHA or other workplace safety requirements in light of COVID-19, please contact a Baird Holm LLP attorney.

R.J. (Randy) Stevenson

Clay D. Haag

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500