OSHA Issues Revised Enforcement Policies for Employee Protection Amid COVID-19
Miller & Martin PLLC Alerts | May 21, 2020
As states begin to reopen for business, on May 19, 2020 the United States Department of Labor’s Occupational Safety and Health Administration issued two revised enforcement policies to ensure that employers are taking appropriate action to protect employees.
Under one of the new policies, OSHA will follow a revised inspection framework that provides:
- In geographical areas that have seen a significant decrease in the spread of COVID-19, OSHA will return to its inspection planning policy that it relied on prior to the start of the COVID-19 health crisis when prioritizing reported event inspections, except that:
- OSHA will continue to prioritize COVID-19 cases;
- OSHA will utilize non-formal phone/fax investigations or rapid response investigations in circumstances where OSHA has historically performed such inspections (e.g., to address formal complaints) when necessary to assure effective and efficient use of resources to address a COVID-19-related event.
- In geographic areas experiencing sustained elevated community transmission or a resurgence in community transmission of COVID-19, Area Directors will exercise discretion, including consideration of available resources, to:
- Continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection, with particular attention given to on-site inspections in high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19, as well as workplaces with high numbers of complaints or known COVID-19 cases.
- Utilize non-formal phone/fax investigation instead of an on-site inspection in industries where doing so can address the relevant hazard(s).
The second revised policy issued on May 19, 2020 addresses recordkeeping matters. Under current recordkeeping requirements, COVID-19 is a recordable illness, so employers must record cases of the virus, if the case:
- Is confirmed as a COVID-19 illness;
- Is work-related as defined by 29 CFR 1904.5; and
- Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.
As many have experienced, it is often difficult to determine whether a coronavirus exposure is work-related or not.
Under the second revised policy, in light of the difficulty in determining work-relatedness, OSHA is exercising enforcement discretion to assess employers' efforts in making work-related determinations.
In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, inspectors are given guidance as to what factors should be considered, including:
- The reasonableness of the employer's investigation into work-relatedness;
- The evidence available to the employer; and
- The evidence that a COVID-19 illness was contracted at work.
If, after the reasonable and good-faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.
For more information about the ongoing developments related to the COVID-19 pandemic, please visit Miller & Martin's Coronavirus Resources.