The Occupational Safety and Health Administration (OSHA) recently adopted revised policies for enforcing requirements concerning the coronavirus as businesses start to reopen across the country.
All entities, private and governmental, have taken rapid and ever-changing measures to slow the spread of COVID-19 and protect everyone from infection.
States are now beginning to open for business and people whose jobs were determined as non-essential are returning to work. As such, OSHA has issued two revised enforcement policies to ensure employers are taking action to protect their employees.
OSHA will increase on-site inspections for all types of workplaces. The new enforcement guidance reflects changing circumstances in which many non-essential businesses have begun to reopen in areas of lower community spread.
The danger of infection is lower in particular types of workplaces, and the availability of personal protective equipment needed for inspections has improved. OSHA workforce will continue to prioritize all potential COVID-19 investigations and will employ all enforcement tools.
The previous OSHA enforcement policy for recording cases of coronavirus is being revised. For purposes of OSHA injury and illness recordkeeping, cases of COVID-19 are not considered a common cold or seasonal flu.
According to OSHA’s May 19 update, Updated Interim Enforcement Response Plan for Coronavirus Disease (COVID-19), the work-relatedness exception for the common cold or flu at 29 CFR 1904.5(b)(2)(vii) does not apply to these cases.
Employers are now responsible for recording incidents of the coronavirus if the following requirements are met:
- The case is a confirmed case as a coronavirus illness, as defined by the CDC;
- The case is work-related as defined by 29 CFR 1904.5;
- The case involves one or more of the general recording criteria in 29 CFR 1904.7 such as medical treatment beyond first aid or days away from work.
Under the new policy issued, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee coronavirus illnesses for all employers.
It will remain challenging in many instances to determine whether a coronavirus illness is work-related because of the nature of the disease and community spread, especially when an employee has experienced potential exposure both in and out of the workplace.
One example of a work-related coronavirus illness would be if an employee, while on the job, has frequent, close contact with the general public in a locality with ongoing community transmission, and there is no alternative explanation.
OSHA’s guidance emphasizes that employers must make reasonable efforts, based on the evidence available to the employer at the time, to determine whether a particular case of coronavirus is work-related. Employers will not be expected to undertake extensive medical inquiries, given employee privacy concerns.
In most circumstances it is sufficient for an employer when they learn of an employee’s COVID-19 illness to ask the employee how they believe they contracted the coronavirus. While respecting the employee’s privacy, discuss with the employee their work, and out-of-work activities that may have led to the coronavirus illness. Review the employee’s work environment for potential coronavirus exposure. This review should be informed by any other instances of workers in that environment, contracting the coronavirus illness.
Recording a coronavirus illness does not mean that the employer has violated any OSHA standard. Following existing regulations, employers with ten or fewer employees and employers in low hazard industries have no recording obligations; they need only report work-related coronavirus illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye. (See 29 CFR 1904.1(a)(1), 1904.2)
For more information and resources about the coronavirus disease, visit OSHA’s coronavirus webpage.
