By Jon Mark Hogg
How do I comply with OSHA requirements if an employee is diagnosed with COVID-19? To resolve confusion caused by the pandemic, OSHA recently issued several enforcement guidances. Among these are guidances on recording cases of Coronavirus and an interim enforcement response plan.
While COVID-19 is considered a recordable illness, OSHA wants employers to focus on prioritizing good hygiene and preventative practices in the workplace rather than trying to figure out if an employee’s COVID-19 diagnosis is work-related. It would be difficult and time-consuming for employers to make this determination will often be difficult for employers to make that determination. So, for the time being most employers are not required to make the work-relatedness determination. You are only required to do so if:
- There is objective evidence that the COVID-19 case may be work-related; and
- The evidence was reasonably available to the employer.
An example of objective evidence would be if a number of employees who work closely together all came down with the illness, with no alternative explanation.
The only exception to this is healthcare, emergency response, and correctional employers are required to record COVID-19 cases on the OSHA Form 300 log if:
- The case is confirmed by the CDC;
- the case is work-related; and
- the case involves one of the general record keeping criteria under OSHA regulations—if it results in death, days missed from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.
This should not be taken as a license to not keep records on employees who do come down with the virus, particularly as it relates to your efforts to make changes in the workplace to ensure good hygiene and proper measures to prevent the spread of the virus. Employers still will need to maintain accident/illness records. It simply means that during the current pandemic, employers ordinarily will not be required to record reported COVID-19 cases as respiratory illnesses on their OSHA Form 300 logs unless there is reasonably available evidence that those cases are, in fact, work-related.
The Interim Enforcement Response plan give direction as to how OSHA offices and investigators will be responding to complaints and conducting investigations during the pandemic. They will be processing complaints and conducting investigations remotely under a “non-formal phone/fax” process. Types of complaints or inquiries OSHA has been receiving over the initial months of the pandemic relate to lack of Personal Protective Equipment (PPE) as well as a lack of training on appropriate standards, and possible COVID-19 illness in the workplace.
Priority for inspections will be for fatalities and imminent danger exposures related to COVID-19, in particular involving healthcare organizations and first responders. All other exposure complaints in medium or lower risk exposure task will not normally result in an on-site inspection. You should also be aware of the obligation to report within 24 hours an in-patient hospitalization of an employee for COVID-19, if the objective evidence available indicates it is work related.
We will follow this up in the next few days with practical tips on what you are likely to see in an OSHA investigation over the next few weeks or months.
For more information about OSHA standards and directives during the COVID-19 pandemic, visit the U.S. Department of Labor website.
Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed