This week, the Occupational Safety and Health Administration (“OSHA”) released guidance on its plan for responding to COVID-19-related complaints and referrals and for enforcement related to COVID-19 workplace illness reporting requirements.
Enforcement Response Plan
On April 13, 2020, OSHA issued guidance titled Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), which provides instructions to OSHA’s Area Offices and compliance safety and health officers (“CSHOs”) for handling COVID-19-related complaints, referrals and severe illness reports. The scope of the guidance covers all investigations and inspections related to COVID-19 workplace hazards.
Under the guidance, OSHA has advised its Area Offices to process complaints from non-healthcare and non-emergency response establishments as “non-formal phone/fax.” OSHA has also advised each area director to evaluate the risk of exposure to COVID-19 at the workplace and to prioritize his or her resources in coordinating with the various regional offices to determine if an on-site inspection is necessary. Further, if an on-site inspection is necessary, CHSOs are instructed to carefully evaluate potential hazards and limit any possible exposure(s).
Processing complaints in this manner is likely a conscious effort to help slow the spread of the virus by handling complaints remotely when possible. The full guidance is available here.
Illness Reporting Guidance
On April 10, 2020, OSHA issued guidance titled Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), which clarifies the circumstances under which employers must record COVID-19 workplace illnesses. In general, employers are responsible for recording cases of COVID-19 if: (1) there is a confirmed case, (2) the case is work-related and (3) the case requires treatment beyond first aid (such as death, days away from work, restricted work or transfer to another job, or loss of consciousness.)
Unlike workplace injuries, it is more difficult to determine whether an employee was infected by the virus at work. Employers in the healthcare industry, emergency response organizations, and correctional institutions must do their best to continue to determine whether employees were infected at work. Other employers are not required to make the same determinations unless: (1) there is objective evidence that a COVID-19 case may be work related (e.g., a number of cases developing among workers who work closely together without an alternative explanation, and (2) the evidence was reasonably available to the employer (e.g., information is given to the employer by employees and information the employer learns about employees’ health and safety in the ordinary course of business.)
OSHA believes that this will allow employers to focus their response efforts on creating good hygiene practices in the workplace and otherwise mitigating the diseases’ effects rather than making tough judgment calls. This guidance is effective immediately and will remain in effect until further notice. The full guidance is available here.
As always, if you have any questions, please contact us.
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