COVID-19 UPDATE: Emerging Guidance from OSHA for Employers

Employers are finally getting more guidance and clarification from Washington DC about several COVID-19 related OSHA compliance issues.

Recording and Reporting COVID-19 Cases

On April 10, 2020, OSHA finally issued some additional guidance about recording COVID-19 illness. How can employers possibly meet the requirements of 29 CFR § 1904.5 — the OSHA standard defining recordable workplace injury and illness — in our COVID-19 world?

The most important sentence in the April 10 memo is “In light of those difficulties, OSHA is exercising its enforcement discretion in order to provide certainty to the regulated community.” This means that OSHA isn’t going to enforce the standard for COVID-19 recording unless there is clear, objective evidence of work-relatedness.

The guidance memo defines “objective evidence” as meeting one or both of the following two criteria:

1.  There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
2. The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.

The memo did not clarify the reporting of COVID-19 positive cases that involved extended illness, hospitalization, or death. We can assume that is forthcoming.

 Respirator Fit-Testing

For several weeks there has been considerable media coverage about the widespread, critical shortages of personal protective equipment (PPE) — masks, face shields, and gowns.

OSHA issued memoranda and guidance in the 2020 Enforcement Memorandum issued on March 14, and in the Interim Guidance and Enforcement Memorandum issued on April 3. This guidance relaxed some of the requirements for respirators, and specifically addressed the shortage of N95s and other filtering facepiece respirators (FFRs). The guidance regarding annual fit-testing, however, only addressed employers in the healthcare industry. Employers in other industries — most notably construction and manufacturing — continued to face the same shortages in PPE, without any further guidance and/or relaxation of standards.

The Enforcement Memorandum issued on April 8 fixed that, expanding prior guidance on respirator fit testing to extend to all industries. The memorandum also instructs OSHA field offices to “exercise enforcement discretion,” and to look for good-faith efforts to comply.

Taking the Body Temperature of Employees

I happened to notice that the Equal Employment Opportunity Commission (EEOC) just issued new guidance that enables employers to take the body temperature of employees. This practice is one of several measures being taken to minimize the spread of COVID-19 in the workplace.

OSHA rightly considers this information to be biological monitoring under 29 CFR § 1910.1020, and its documentation constitutes a medical record. For employers, this means new privacy and recordkeeping requirements.

Employers are Proactive

There is lots of anecdotal evidence filtering back to me through various channels about the proactive employers are taking in response to the pandemic — often in ways that are out-pacing specific government guidance.

If you have any compliance or other employment/labor relations questions about the new policies and practices that you are implementing in your workplace — or if you need help developing effective COVID-19 policies — feel free to contact me.

About the Author: James Laboe

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