OSHA Reverses Course and Now Requires Employers to Track COVID-19 Cases

Filed in Disaster Response, Labor by on May 22, 2020 6 Comments

coronavirusThe U.S. Occupational Safety and Health Administration this week announced a significant reversal of previous policy on an employer’s obligation to record work-related cases of COVID-19 on OSHA injury and illness logs. The new requirements go into effect Tuesday, May 26.

As with the previous guidance, OSHA acknowledged that it will be difficult to establish that a particular COVID-19 case is “work-related.” But the new guidance does place additional obligations on most employers to conduct an investigation and to make a reasonable determination as to whether the illness was transmitted on the job.

It should be noted that the new guidance applies only to employers currently subject to OSHA’s recordkeeping requirements. Due to employee size limitations, many home builders are exempt from most of the new requirements.

Employers who are subject to OSHA’s recordkeeping requirements must record a case of COVID-19 as job-related if:

  1. It is a confirmed case of the virus (a positive test),
  2. It is “work-related” in that an event or exposure in the work environment either contributed to or caused an employee to contract the virus, and
  3. It results in death, days away from work, restricted work or transfer, or medical treatment beyond first aid.

Employers who have no recordkeeping obligations need only report work-related COVID-19 illnesses resulting in an employee’s death or in-patient hospitalization, amputation, or loss of an eye. But those employers must still investigate positive tests to determine if the case is work-related.

OSHA will consider the “reasonableness” of an employer’s investigation when determining compliance. The new guidance concedes that employers are not expected to undertake extensive medical inquiries, given privacy concerns and most employers’ lack of medical expertise. However, in most circumstances, employers should complete the following steps when they learn of a COVID-19 case:

  • Ask the employee how they believe they contracted the illness.
  • Discuss with the employee, while respecting privacy concerns, the activities both inside and outside of work that may have led to the illness.
  • Review the employee’s work environment for potential COVID-19 exposure.

OSHA recognizes that determining the work-relatedness of a COVID-19 diagnosis is difficult for most employers, and noted that it would consider certain types of evidence that weigh in favor or against work-relatedness. For example, it is likely the virus was contracted at work if several cases develop among workers who work closely together and there is no alternative explanation. Conversely, if only one worker at a site tests positive, it is likely not work-related.

NAHB recognizes that members will have many questions about the new guidance. Staff is carefully reviewing the new guidance and intends to work with OSHA on implementation.

Any questions may be directed to Rob Matuga or Felicia Watson.

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Comments (6)

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  1. Rosty Caryk says:

    I wonder if the meat-packing industry will be exempt for some reason.

  2. Stephanie Sturkie says:

    I’m curious to know if we are required track any other virus or sickness to see if it was caught or caused by work? Thank you.

    • NAHB Now says:

      The short answer is: yes, other contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work.

      The basic OSHA requirement is that employers must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in §1904.5(b)(2) applies. For example, employers are not required to record the illness for the common cold or seasonal flu (see: https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.5).

  3. David L. Berry says:

    This is beginning to sound like invasion of privacy to me. The continuing of the slippery slope.

  4. Kelly Leerman says:

    Any comments on how this works in California with Gov. Newsom’s Executive Order of Rebuttable Presumption and coverage of COVID 19?

    • NAHB Now says:

      Kelly,

      What is an OSHA recordable injury or illness versus what is compensable under a state’s workers compensation are overlapping but distinct concepts. OSHA requires that many employers with more than 10 employees keep a record of serious work-related injuries and illnesses, which is designed to help employers recognize workplace hazards and correct hazardous conditions, whereas workers’ compensation is a form of no-fault insurance providing wage replacement and medical benefits to employees injured in the course of employment.

      In California, if workers reported to their employer’s worksite between March 19 and July 5, 2020 and tested positive or were diagnosed with a COVID-19-related illness, they may be eligible for workers’ compensation benefits under the Executive Order issued by Governor Newsom on May 6 (see: https://www.gov.ca.gov/2020/05/06/governor-newsom-announces-workers-compensation-benefits-for-workers-who-contract-covid-19-during-stay-at-home-order/).

      Additionally, there are currently 22 OSHA-approved workplace safety and health programs operated by individual states or U.S. territories, such as California, and these states may have adopted
      recordkeeping regulations that are different. If you have operations in an OSHA state-plan state (see: https://www.osha.gov/stateplans), you should contact your local administrator for further information about the recordkeeping regulations and other workplace safety standards applicable in your state.

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