In reversal, OSHA says employers must record COVID-19 cases
Washington — OSHA has revised its enforcement policy for recordable cases of COVID-19, adding that it will increase workplace inspections.
Announced in a May 19 press release, the new enforcement policy overrides an April 10 guidance memo that required only employers in the health care industry, emergency response organizations and correctional institutions to make work-related determinations of COVID-19 cases. All other employers were exempt except in cases in which “objective evidence” existed that a COVID-19 infection was work-related or the evidence was “reasonably available” to the employer.
Now, OSHA states that COVID-19 cases are recordable if the illness is confirmed as COVID-19, the illness is work-related as defined by 29 CFR 1904.5 and the case involves at least one of the general recording criteria listed in 29 CFR 1904.7. The criteria include days away from work, medical treatment “beyond first aid,” loss of consciousness, and restricted work or transfer to another job.
To be recorded, there are standard criteria that must be met:
• COVID-19 is confirmed
• It is suspected to be work-related as defined by 29 CFR 1904.5
• The case includes either:
• Days away from work
• Medical treatment “beyond first aid”
• Loss of consciousness
• Restricted work
• Transfer to another job
Employers must comply with this, and OSHA notes that it does not mean that the employer has violated OSHA regulations by recording these cases. To evaluate if a COVID-19 case could be work-related, an employer can follow these procedures to make that determination and then record if it produces results of confirmation.
• Reasonable nature for the employer to investigate an employee as a COVID-19 case
• Analyze evidence available to the employer
• See that evidence confirms that COVID-19 was contracted at work
There are special exceptions to this new policy. Businesses with no more than 10 employees, as well as employees in “low-hazard industries” are not obligated to report any COVID-19 cases. However, if the businesses in these situations have a case that results in death, in-patient hospitalization, amputation, or loss of an eye, then the case must be recorded at that time.
This revised policy is meant to help mitigate the spread of the virus by determining areas of high-risk transmission. As the country begins to reopen operations, this new policy will help OSHA assess the number of business inspections and help them to prioritize each unique situation.
“Given the nature of the disease and community spread, however, in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace,” the agency states in the release. “OSHA’s guidance emphasizes that employers must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.”
OSHA adds, “Recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.”
When determining whether an employer has complied with the revised policy, OSHA instructs compliance officers in a memo issued the same day to apply these considerations:
- The reasonableness of the employer’s investigation into whether the COVID-19 case was work-related
- The evidence available to the employer
- The evidence that COVID-19 was contracted at work
For the last consideration, the agency provides scenarios of “certain types of evidence” to determine whether COVID-19 cases are likely work-related.
“If, after the reasonable and good-faith inquiry described above, the employer cannot 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 memo states.
Employers with no more than 10 employees and certain employers in “low-hazard industries” do not have an obligation to report COVID-19 cases unless a work-related illness results in death, in-patient hospitalization, amputation or loss of an eye.
According to OSHA, its decision to increase the number of inspections is a result of “changing circumstances in which many noncritical businesses have begun to reopen in areas of lower community spread.” The agency notes in the release that “the risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available. OSHA staff will continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.”