COVID-19 UPDATE: OSHA’S New Guidance Expects All Employers to Make an Effort

The regulatory obligation for employers to record work-related cases of COVID-19 on an OSHA 300 Log has been controversial and confusing from the beginning of the pandemic. Employers have questioned the need, based on the cold and flu reporting exemption, and were confused about how to determine work-relatedness. Many low- and moderate-risk employers wondered if they had to record COVID-19 cases at all.

Effective May 26

On May 19, 2020, OSHA published new guidance to “provide certainty to employers and workers.” The new guidance is effective on May 26, 2020, and replaces the guidance issued in April.

The new guidance requires all employers to record all COVID-19 cases that are confirmed by at least one positive test, are work-related, require medical treatment, and result in lost workdays, loss of consciousness, or death.

COVID-19 is Not a Cold or the Flu

In all the guidance that OSHA has issued over the past few months, the agency has made it very clear that it does not consider COVID-19 in the same way as it does influenza — even though the symptoms are very similar. OSHA has explained that the cold and flu exemption is a regulation that went through the notice-and-comment rulemaking process and that OSHA cannot declare something exempt from recordkeeping and reporting requirements.

What’s Changed Since April?

The recordkeeping guidance issued in April focused on high-risk workplaces like hospitals and long-term care facilities. The April guidance was interpreted by many employers (and their legal counsel) as exempting non-healthcare related employers from any analysis of COVID-19 cases— unless the connections were obvious.

The new guidance makes it clear that there is no exemption for low- and medium-risk workplaces, and provides additional information on how employers can determine work-relatedness. It’s still a fuzzy concept, legally, but what’s essential from OSHA’s perspective is that all employers make an effort. The new policy indicates that OSHA intends to enforce these recordkeeping requirements (29 CFR 1904) and that the agency plans to step up site inspections to ensure compliance.

What’s a Reasonable Effort?

The May 19 guidance clarifies that OSHA expects all employers to “make an effort” to determine the work-relatedness of each COVID-19 case. OSHA indicates that they don’t expect employers to make medical inquiries — because of privacy concerns — and to rely only on “information that is reasonably available.” The guidance also describes a process for how employers should be conducting their analysis:

• Ask the employee how he/she believes he/she contracted the virus.
• Ask the employee about all work-based and outside-work activities that could have lead to infection.
• Review the employee’s work environment for exposure and monitor other employees in the vicinity.

NOTE: OSHA has indicated that COVID-19 is considered a respiratory illness and should be coded as such on you 300 Log. Also, employees can request that their name not be entered in the 300 Log should they wish to keep their medical information private.

OSHA describes the most common scenarios that employers should use to determine the “work-relatedness” of a COVID-19 case. The guidance says that “COVID-19 illnesses “are likely work-related” if:

• Several cases develop among workers who work closely together, and there is no alternative explanation.
• Infection is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19, and there is no alternative explanation.
• if the employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

No alternative explanation? Given the ongoing widespread community transmission of this virus, there is always an alternative explanation. That’s a legal loophole one can, as they say, drive a truck through.

Nevertheless, should OSHA come to call over the next few months, they’ll be looking for the “reasonableness of the employer’s investigation into work-relatedness” of COVID-19 illness.

Enforcement?

On the same day that OSHA issued its new guidance memo about recordkeeping, the President issued an Executive Order entitled “Regulatory Relief to Support Economic Recovery.” This Executive Order indicated (among other things) that “all agencies shall consider whether to formulate, and make public, policies of enforcement discretion that, as permitted by law… decline enforcement against persons and entities that have attempted in reasonable good faith to comply with applicable statutory and regulatory standards.”

This mirrors OSHA’s instructions to its regional offices and state plan designees on April 13, which encouraged enforcement discretion when employers make a good faith effort to comply with the applicable guidelines coming from the Centers for Disease Control and Prevention.

Communicate

As always, feel free to get in touch if you have any questions about these new recordkeeping guidelines — or any other compliance or business issue you are facing during the COVID-19 pandemic.

About the Author: James Laboe

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