OSHA revises employer COVID-19 tracking requirement

Dive Brief:

OSHA has issued two new pieces of enforcement guidance for employers, one for recording COVID-19 cases and the other regarding its plans for on-site inspections. Both are limited to the duration of the current novel coronavirus public health crisis.
The agency said employers must record a case if the employee's illness is diagnosed as COVID-19 as defined by the Centers for Disease Control and Prevention (CDC); is work related; and meets one or more of OSHA's general recording criteria — death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness or a diagnosis considered significant by a physician or other health care professional.
In the other directive, OSHA said that in areas of the United States where the spread of COVID-19 has decreased, it will return to its pre-pandemic inspection policy but that it will continue to prioritize coronavirus cases; will use phone, fax and rapid response inspections where appropriate; and will ensure that inspectors take all safety precautions when dealing with COVID-19 cases. In areas still experiencing high levels of COVID-19 cases, OSHA will continue to prioritize high-risk workplaces for onsite inspections.

Dive Insight:

In its latest guidance to employers, OSHA acknowledged that it could be difficult to determine whether employees diagnosed with COVID-19 were exposed at work or elsewhere, so the agency went into more detail than it previously has about how employers should approach that determination. OSHA said COVID-19 illnesses are likely work related if:

Multiple cases develop among those who work closely together and there is no alternative explanation.
An employee contracts the illness shortly after "lengthy and close" exposure to a customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
Job duties include frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

Cases of COVID-19 are likely not work related if:

An employee is the only employee in the work area to contract the illness and does not have frequent contact with the general public.
An employee, outside the workplace, has frequent and close contact with someone who has COVID-19 and that person is not a coworker and likely exposed the employee while infectious.

If after a "good-faith" evaluation, an employer still can't come to a conclusion as to whether a case is work related, then it does not have to record the illness.

The main difference between this and previous guidance about reporting COVID-19 cases, according to attorney Phillip Russell with Ogletree, Deakins, Nash, Smoak & Stewart in Tampa, Florida, is that OSHA is reinstating enforcement of recordkeeping related to COVID-19. The work-related requirement remains, and the agency added clarification that a one-person infection is not likely to be work related. Employers, he said, also have some flexibility with the requirement if they make a reasonable determination based upon objective evidence available at the time.

"None of this changes the underlying difficulty in making a work-related determination," Russell said. "This additional guidance provides a roadmap for employers to make that determination based on reasonable efforts and objective information."