On May 19, the Occupational Safety and Health Administration, better known as OSHA, issued Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19).
The guidance is directed at compliance safety and health officers regarding the enforcement of an employer’s duty to properly record instances of occupational illnesses involving COVID-19 and goes into effect on May 26. The reporting requirement applies to employers with 10 or more employees.
The guidance states that confirmed cases of COVID-19 that are found to be work-related must be reported. However, OSHA recognizes that it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace. According to the guidance, compliance safety and health officers should consider the following factors when making an enforcement determination:
- The reasonableness of an employer’s investigation into work-relatedness, taking into consideration the size of the employer.
- The evidence available to the employer at the time the employer made the work-relatedness determination.
- The evidence that a COVID-19 illness was contracted at work, such as whether several cases developed among workers who work closely together or had lengthy, close exposure to a fellow worker who has a confirmed case of COVID-19.
The guidance states that recording a COVID-19 illness does not, in itself, mean that the employer has violated any OSHA standard. It also notes that if, after a good faith inquiry, an employer concludes the workplace did not cause a particular case of COVID-19, the employer has no duty to report it. OSHA’s COVID-19 website provides additional guidance regarding COVID-19 and the workplace.
Dave McCormack is a partner at the law firm Axley. He specializes in employment law, commercial real estate, contract drafting and negotiation, finance and environmental law.