On May 19, 2020, the Occupational Safety and Health Administration (“OSHA”) published a new memorandum providing updated interim guidance on reporting occupational illnesses specific to COVID-19. This memorandum serves to replace previous guidance provided by OSHA on April 10, 2020, which had imposed significant limitations on who needed to test for COVID-19 in the workplace, when and how.
The May 19, 2020 memorandum notes that “[c]onfirmed cases of COVID-19 have now been found in nearly all parts of the country, and outbreaks among workers in industries other than healthcare, emergency response, or correctional institutions have been identified.” Given the widespread incidence of the disease, and the fact employers have adapted in order to re-open the workplace, OSHA concluded “employers should be taking action to determine whether employee COVID-19 illnesses are work-related and thus recordable.”
The updated memorandum makes clear COVID-19 constitutes a recordable illness in the workplace, one that triggers reporting responsibilities if:
- The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (“CDC”);
- The case is work-related as defined by 29 C.F.R. § 1904.5; and
- The case involves one or more of the general recording criteria set forth in 29 C.F.R. § 1904.7.
The new guidance recognizes “the difficulty with determining work-relatedness” in the case of COVID-19. Nonetheless, OSHA will determine whether an employer met its workplace safety obligations by considering the factors contained in the updated guidance. These factors include:
- The reasonableness of the employer’s investigation into work-relatedness;
- The evidence available to the employer; and
- The evidence that a COVID-19 illness was contracted at work.
In relation to each of these factors, OSHA provided additional guidance. For example, with regard to the first factor, OSHA notes “[e]mployers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area.” Instead, “it is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness:
- to ask the employee how the employee believes he or she contracted the COVID-19 illness;
- while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and
- review the employee’s work environment for potential SARS-CoV-2 exposure.
The updated guidance further describes some general scenarios in which a case of COVID-19 is, and is not, likely work-related. For example, “[a]n employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.” On the other hand, “[a]n employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.”
Ultimately, if the employer cannot—after a reasonable and good-faith inquiry consistent with these guidelines—determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.
The new guidance nonetheless affirms an important principle for employers that: “[r]ecording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.” Further, for employers with 10 or fewer employees and certain employers in low hazard industries, the employer need only report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.
To stay abreast of these and other developments, OSHA encourages the public to closely track any changes and updates to guidance on its COVID-19 website: https://www.osha.gov/SLTC/covid-19/.