Employers are facing many new situations during this COVID-19 pandemic. One question we are hearing often from our clients is whether or not they need to record cases of COVID-19 in their OSHA logs. After all, with so many communities in the midst of ongoing community transmission, how do employers determine whether employees contracted COVID-19 at work or elsewhere?
To bring some clarity to this issue, OSHA recently issued a memo to provide guidance based on what type of employer you are. You can read the entire memo here, but here’s a quick recap of what the policy states.
First, COVID-19 is a recordable illness which means employers are responsible for recording confirmed cases of COVID-19, if it is work-related. But OSHA recognizes the challenges many employers may face when determining whether cases are work-related, so they have modified their requirements for some employers.
Essentially, they have divided employers into two types: employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services) and correctional institutions; and “other,” which includes everyone else.
Little has changed for employers in the healthcare industry, emergency response organizations and correctional institutions. These employers must continue to make work-relatedness determinations pursuant to 29 CFR § 1904.5.
However, there is a change for employers who fall into the “other” category. Until further notice, these employers are not required to make the same work-relatedness determinations unless there is objective evidence that a COVID-19 case may be work-related and the evidence was reasonably available to the employer. The memo gives the example for objective evidence of a situation where several employees who work closely together develop COVID-19 cases without an alternate explanation.
Further, in regards to an example of reasonably available evidence, OSHA states this “includes 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.”
OSHA has made these temporary changes to enable employers to focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is ongoing community transmission.
With regard to supply shortages of N95s or other filtering facepiece respirators (FFRs) due to the coronavirus disease 2019 (COVID-19) pandemic, OSHA issued a memorandum on April 8, 2020 which expanded the temporary enforcement guidance addressing the annual respiratory protection fit-testing requirements to include all workplaces covered by OSHA where there is required use of respirators (Note: the previous temporary enforcement guidance only addressed healthcare workplaces). OSHA field offices will exercise enforcement discretion concerning the annual fit-testing requirements, as long as employers have made good-faith efforts to comply with the requirements of the Respiratory Protection standard and to follow the steps outlined in the earlier March 14, 2020 memorandum.
Each phase of this COVID-19 pandemic brings new challenges for employers, and we are working hard to bring you the most up-to-date and accurate information. Last, for more guidance information from OSHA on COVID-19, click on this OSHA webpage link. Also, see CDC’s “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019” for additional information.
