To Tell or Not to Tell: OSHA Changes Course on Reporting of COVID-19 Cases by EmployersDo you have to report an employee’s positive COVID-19 case to OSHA and will OSHA investigate it? On the reporting front, OSHA’s initial guidance said positive cases were reportable only in specific industries, like healthcare, emergency response organizations, and correctional institutions. However, since outbreaks have been reported in additional specific industries, OSHA is now requiring ALL employers to report COVID-19 cases among their employees if a reasonable investigation shows that the case is work related and meets other specified criteria. Under the Revised Enforcement Guidance for Recording COVID-19 Cases, which went into effect on May 26, all employers must make a little deeper inquiry into how an employee contracted the disease and perhaps, report it to OSHA.

OSHA also issued an Updated Interim Enforcement Response Plan for Coronavirus Disease, also effective May 26, which considers the infection rate of certain geographic areas and addresses how the administration intends to handle COVID-19 related complaints, referrals and reports.

Updated Enforcement Plan

As we have said before, geography matters. Under the updated plan, OSHA’s enforcement response measures will differ based on whether “community spread of COVID-19 has significantly decreased” or whether a given geographic area continues to experience “sustained elevated community transmission or a resurgence” of COVID-19 transmission.

In areas where the spread of the virus has decreased, OSHA will resume its inspection planning policy set forth in Chapter 2 of the OSHA Field Operations Manual, CPL 02-00-164, with the exception that OSHA will continue to prioritize COVID-19 cases, utilize non-formal phone and fax investigations or rapid response investigations as needed to efficiently use its resources, and each OSHA area director will ensure that compliance safety and health officers use appropriate precautions and PPE during inspections.

In areas with continued high levels of virus transmission, OSHA will prioritize COVID-19 fatalities and “imminent danger exposures.” When resources are insufficient for onsite inspections, inspections will commence remotely with the expectation that an onsite inspection will follow at a later date. If resources are so limited that neither onsite nor remote inspections are possible, OSHA will conduct its investigations using a rapid response investigation “to identify hazards, provide abatement assistance, and confirm abatement.” In communities with a high prevalence of COVID-19 transmission, special attention to onsite inspections will be given to high-exposure risk work environments such as healthcare facilities, biomedical laboratories, funeral homes and crematoriums, and medical transport companies.

Revised Recordkeeping Enforcement Guidance

Because “outbreaks among workers in industries other than healthcare, emergency response, or correctional institutions have been identified,” OSHA expects employers to take action to determine whether workers’ illnesses are work related. Under OSHA’s recordkeeping requirements, a COVID-19 case is recordable if it:

(1) is confirmed to be COVID-19 as defined by the CDC;

(2) is work related under 29 CFR § 1904.5; and

(3) involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

The updated guidance continues to recognize the difficulty in determining whether a COVID-19 case is work related and grants enforcement discretion to compliance safety and health officers to assess employers’ efforts in making work-related determinations. Specifically, OSHA officers are instructed to assess 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.

Employers are not expected to undertake extensive medical inquiries into an employee’s case. The guidance indicates that an employer can satisfy the requirement to conduct a reasonable investigation by:

  • asking the employee how he or she believes the illness was contracted,
  • discussing the employee’s work and out-of-work activities that may have led to the illness, and
  • reviewing the employee’s work environment for potential circumstances of exposure.

If after conducting a reasonable, good faith investigation and weighing all reasonably available evidence “the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role”, then the employer is not required to record the COVID-19 illness. However, in all cases, OSHA cautions that employers should examine COVID-19 cases among workers and respond appropriately to safeguard the health and safety of employees.

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