The U.S. Department of Labor, Occupational Safety and Health Administration (“OSHA”) published its Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (“Revised Guidance”). On May 27, 2020, the Revised Guidance went into effect and OSHA’s initial enforcement guidance (“Initial Guidance”) was rescinded.
Under the Revised Guidance, OSHA recognizes COVID-19 as a respiratory illness that should be coded on the OSHA Form 300. Unlike the Initial Guidance that had limited application, the Revised Guidance requires most employers to record a COVID-19 case if (1) the case is a confirmed case of COVID-19, (2) the case is work-related as defined by 29 CFR § 1904.5; and (3) the case involves one or more occurrences outlined in 29 CFR § 1904.7, which includes death, restricted duty, job transfer, lost workdays, medical treatment beyond first aid, loss of consciousness, or other significant illness. Since COVID-19 is considered an illness, employers grant an employee’s request not to be included on the OSHA Form 300. Employers with ten or fewer employees and certain employers in low-hazard industries need to report only work-related COVID-19 illnesses resulting in death, in-patient hospitalization, amputation, or loss of an eye.
Employers must perform an inquiry to determine the work-relatedness of a COVID-19 case. If after a “reasonable and good faith inquiry,” an employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with a COVID-19 case, the employer need not record the COVID-19 illness, according to the Revised Guidance. Recognizing the difficulties employers face in determining work-relatedness of a COVID-19 case, OSHA will use its enforcement discretion and consider the factual circumstances, the evidence reasonably available to the employer, and the nature of the employee’s job responsibilities when determining employer compliance. Importantly, the Revised Guidance also notes that “recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.” OSHA’s Revised Guidance can be read here.
The attorneys at Chilivis Grubman assist businesses of all types and sizes in connection with employment-related litigation, as well as investigations by various government agencies, such as OSHA. If you need assistance with such a matter, please contact us today.