OSHA Refines Stance on COVID-19 Recordkeeping and Enforcement

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Jun 3, 2020
This article is part of a series called COVID-19 Coverage.

The Occupational Safety and Health Administration (OSHA) recently issued two enforcement memos regarding COVID-19.

The first of these memos revised OSHA’s requirements for employers as they determine whether individual cases of COVID-19 are work-related. The second enforcement memorandum OSHA issued on May 19 revised OSHA’s policy for handling COVID-19-related complaints, referrals, and severe illness reports.

The two memos are summarized below.

Recordkeeping and reporting

As has been OSHA’s position for months, cases of COVID-19 are subject to OSHA’s recordkeeping and reporting requirements if they are work-related. On May 26, 2020, OSHA’s new memorandum will supersede the previous April 10 memorandum on the subject of work-relatedness.

The April 10 memorandum essentially provided most employers latitude to assume that cases of COVID-19 were not work-related, absent evidence to the contrary. Now, the May 19 memorandum revises OSHA’s position, requiring employers to investigate COVID-19 cases more heavily before concluding whether they are work-related.

The primary thrust of OSHA’s revised position on work-relatedness is that OSHA enforcement officers should consider three primary factors when evaluating whether an employer’s determination of work-relatedness was reasonable:

  • 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.

OSHA elaborates on these three factors in the May 19 memo.  Employee privacy rights are a potential trap for unwary employers when inquiring about employee exposure outside of the workplace. Such discussions could implicate a variety of employment laws, including state-specific laws.

OSHA justifies its revised position on work-relatedness by stating that the nature of COVID-19 and the ubiquity of community spread frequently make it difficult to accurately determine whether a COVID-19 illness is work-related, especially when employees have experienced potential exposure both in and out of the workplace. OSHA might also have been motivated by some organizations calling for OSHA to take a more aggressive response to COVID-19.

Complaints, referrals, and illness reports

The second memo issued on May 19 related to complaints, referrals, and severe illness reports. Specifically, in geographic areas where community spread of COVID-19 has significantly decreased, OSHA will return to its normal pre-COVID-19 methods for prioritizing reported events for inspections.

OSHA will continue to prioritize cases of COVID-19 to some degree, but these efforts will increasingly be conducted by phone or other remote methods.

In geographic areas experiencing either sustained elevated community transmission or a resurgence in community transmission, OSHA will continue to heavily prioritize COVID-19, including conducting on-site inspections, especially in high-risk workplaces. For more detail, the memorandum itself is available here.

Final takeaways

As with all other aspects of the COVID-19 pandemic response, OSHA’s enforcement approaches continue to evolve.  Professionals with questions on how OSHA’s recent enforcement policies affect a business or organization should consider consulting with legal counsel.

This article is part of a series called COVID-19 Coverage.