The Occupational Safety and Health Administration (OSHA) on May 19, 2020, issued two sets of revised guidance regarding COVID-19-related workplace incidents, including a new response plan containing instruction and guidance to its Area Offices and compliance safety and health officers (CSHOs) for handling COVID-19-related complaints, referrals and severe illness reports. The response plan and guidance address two primary issues of which employers need to be aware. First, OSHA has, for the third time, adjusted its guidance regarding the recording of COVID-19-related workplace illnesses on the OSHA 300 Logs. Second, OSHA has signaled an increase in the number of in-person inspections by its CSHOs, under a COVID-19 geographic specific framework.
This Holland & Knight alert updates our two previous OSHA alerts, which addressed COVID-19 recording obligations. (See "COVID-19: Recording and Reporting Obligations Under the Occupational Safety and Health Act," March 24, 2020, and "COVID-19 OSHA Follow-Up: Agency Updates and Additional Recommended Employer Practices," April 27, 2020.)
Following the initial outbreak of COVID-19, OSHA released initial guidance that required employers to record all COVID-19 illnesses amongst workers if the illness was "work-related" as defined in 29 C.F.R. Part 1905. Employers, as was subsequently recognized by OSHA, faced difficult logistical challenges with discerning whether an employee's COVID-19 illness was "work-related," especially in areas with marked community spread. This led to significant employer confusion and prompted the following question — just how are employers able to discern whether a virus transmission occurred in the workplace or is otherwise work-related?
On April 10, 2020, OSHA issued further and revised guidance to make clear that even in areas with community transmission of COVID-19, OSHA would not require most employers (excluding the healthcare industry, correctional institutions and law enforcement) to record COVID-19 workplace illnesses unless clear, objective evidence existed that suggested COVID-19 illness was work-related. With this clarification, OSHA alleviated the logistical, if not inevitable, burden on employers, allowing employers to focus their efforts on effective implementation of workplace safety policies.
Now, this third and latest issuance by OSHA alters the guidance published on April 10, 2020. OSHA recognizes "the nature of the disease and ubiquity of community spread [can make it] difficult to determine whether a COVID-19 illness is work-related." To provide certainty to employers and workers, and because of the inherent difficulty in determining whether a COVID-19 illness is "work-related," OSHA will look to the following factors when evaluating employers' work-related assessment efforts:
Lastly, OSHA notes that investigators should give "due weight" to any evidence regarding causation of a COVID-19 illness that is provided by the employer, employee, medical providers, public health authorities or other relevant sources.
OSHA's new response plan is slated to go into effect on May 26, 2020. OSHA is altering its COVID-19 response plan because "the government and the private sector have taken rapid and evolving steps to slow the virus's spread, protect workers, and adapt to new ways of doing business." With additional protections in place, OSHA plans to conduct more in-person inspections under two distinct frameworks.
OSHA will resume the inspection planning policy that OSHA relied on prior to the start of the COVID-19 health crisis. However, when prioritizing reported events for inspections, OSHA will:
OSHA will not return to the normal inspection planning policy that existed prior to the start of the COVID-19 pandemic. Instead, OSHA will continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection. OSHA will, on occasion, conduct on-site inspections for high-risk workplaces, such as healthcare treatment facilities, and workplaces with high numbers of complaints or known COVID-19 cases. With regard to limitations for on-site inspections, OSHA's response plan instructs inspectors to handle these limitations according to the below:
Employers should continue to monitor OSHA's ever-changing guidance in response to COVID-19. For more information or assistance on this topic or with any other OSHA matters, please contact the authors or other members of Holland & Knight's OSHA, Workplace Safety and Whistleblower Claims Team.
DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.
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