US | COVID-19 | OSHA Revises Guidance on Recording COVID-19 Cases

On May 19, 2020, the Occupational Safety and Health Administration (OSHA) updated its interim enforcement guidance on recording cases of COVID-19. This guidance replaces the current enforcement guidance effective May 26, 2020. The guidance is time-limited to the current public health crisis. All employers normally required to record injuries and illnesses must conduct work-related determinations for any COVID-19 cases.

OSHA is rescinding its previous policy from April 10, 2020 that only required certain industries and employers who had objective evidence that a COVID-19 case may be work-related to make work-relatedness determinations. Beginning May 26, 2020, all employers normally required to record injuries and illnesses will be required to make a work-related determination for COVID-19 cases.

OSHA Considerations

OSHA will consider the following when determining whether an employer made a reasonable determination of work-relatedness:

  • The reasonableness of the employer’s investigation into work-relatedness.
    • OSHA does not expect all employers, such as small employers, to be able to undertake extensive medical inquiries, due to privacy concerns and many employers’ lack of expertise in this area. OSHA will often consider it sufficient if an employer, when learning of an employee’s illness, to ask (1) how the employee believes he or she contracted the illness; (2) about work and out-of-work activities that may have led to the illness (while respecting employee privacy); and (3) consider any other instances of workers in that environment contracting COVID-19.
  • The evidence available to the employer.
    • Employers should consider all information reasonably available at the time they make a work-relatedness determination. If an employer later learns of additional information related to the employee’s illness, then that information should be taken into account as well.
  • The evidence that a COVID-19 illness was contracted at work.
    • COVID-19 cases are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
    • A case is likely work-related if it 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.
    • A case is likely work-related if the employee’s job duties include frequent, close exposure to the general public in a location where there is ongoing community transmission and there is no alternative explanation.
    • A case is likely not work-related if the employee is the only worker to contract COVID-19 in the employee’s area, the job duties do not include frequent contact with the general public, regardless of the rate of community spread.
    • A case is likely not work-related if the employee closely and frequently associates outside of work with someone (for example, 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.
    • OSHA will also give due weight to any evidence of causation provided by medical providers, public health authorities, and the employee.

An employer is not required to record a COVID-19 case if, after a reasonable and good faith effort, the employer cannot determine that it is more likely than not that exposure in the workplace played a causal role in a specific COVID-19 case. This does not remove the employer’s responsibility for evaluating COVID-19 cases among its workers and responding appropriately to protect its workers, even if it determines the case is not work-related.

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Sources:

OSHA, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), May 19, 2020

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