As states reopen, the Occupational Safety and Health Administration (OSHA) has issued new enforcement guidance and outlined its plan for investigating claims of workplace violations related to COVID-19 infections. The updated policies supersede OSHA’s previous COVID-19 related guidance and went into effect on May 26, 2020.
Under the new guidance, the pivotal question remains whether a case of COVID-19 is “work-related.” The biggest change under the new policy is the obligation for non-healthcare employers to conduct a “reasonable and good faith inquiry” into whether “it is more likely than not” a COVID-19 case is work related. While the prior guidance created different paths for different types of employers, the revised guidance imposes a more traditional “reasonableness standard” on all employers when determining compliance with OSHA record-keeping obligations.
Noting privacy concerns and the likely absence of medical expertise, OSHA has commented that most employers, small employers especially, are not generally expected to undertake extensive medical inquiries. The new policy clarifies that, in most circumstances, it will be sufficient for employers to complete the following steps when they learn of a COVID-19 case:
- Ask the employee how they believe they contracted the illness;
- Discuss with the employee, while respecting privacy concerns, the activities both inside and outside of work that may have led to the illness; and
- Review the employee’s work environment for potential COVID-19 exposure.
The review of the work environment should focus primarily on other instances of workers who contracted COVID-19 and the circumstances surrounding those other cases.
Furthermore, an employer’s analysis of work-relatedness may also take into account their implementation and enforcement of steps to address the spread of COVID-19 in the workplace that are consistent with guidelines from the Centers for Disease Control and Prevention (CDC) and OSHA (including, for example, the use of face coverings, social distancing, and cleaning procedures).
If, after making a reasonable and good faith inquiry, an employer cannot determine whether it is more likely than not that the COVID-19 case is work related, then the employer does not need to record the illness.
Inspection and Enforcement
The announcement also outlined OSHA’s intention to increase in-person inspections as local conditions allow. In its new policy, the agency addresses geographic distinctions concerning the prevalence of COVID-19 cases and outlines separate enforcement plans for each. In areas where spread of the disease is less prevalent, OSHA says it will resume the pre-pandemic inspection plan, as outlined in its field operations manual. For areas where COVID-19 transmission is still elevated or surging, the guide calls on OSHA area directors (ADs) to exercise their discretion. The agency said that it will continue to prioritize COVID-19 cases and use non-formal investigations, such as those conducted remotely.
Key takeaway: OSHA’s new guidance creates a single framework for recording work-related cases of COVID-19 for all employers with OSHA record-keeping obligations. Although this increases the investigatory obligations of employers with confirmed COVID-19 cases, the revised guidance promises enforcement discretion to account for the difficulty with determining the work-relatedness of a highly contagious disease. Ultimately, OSHA wants employers to focus on good hygiene practices, and so, it continues to highlight best practices such as cleaning workstations before and after shifts, keeping employees at least six feet apart, staggering shifts to have a less crowded office, and encouraging hand washing throughout the day. And, of course, employers should continue to emphasize their ongoing safety policies and practices. Employers with questions about applying OSHA’s new framework for work-relatedness and recording cases of COVID-19 should consult legal counsel.
Stanton Law Attorneys Are Here for You
Our experienced Atlanta employment attorneys can assist you in navigating changing federal requirements related to COVID-19. Contact Stanton Law at 404-881-1288, or visit us online for help with all your business law questions.