Further OSHA Update for Employer COVID-19 Recording Obligations

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.)

Updated OSHA Recording Obligations

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:

1. The reasonableness of the employer's investigation into "work-relatedness" element. OSHA notes that employers, especially small employers, are not expected to undertake extensive medical inquiries in light of employee privacy rights and because most employers do not have medical expertise. Therefore, OSHA notes that employers can satisfy their reasonableness burden in most circumstances if they: 1) ask the employee how they believe they contracted the COVID-19 illness; 2) while respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness; and 3) review the employee's work environment for potential COVID-19 exposure.
2. The evidence available to the employer. When assessing an employer's work-relatedness determination, OSHA will look to the evidence reasonably available to the employer at the time it made its work-relatedness determination. If employers hold that an illness was not work-related, but later learn additional information that changes that determination, employers will be expected to apply the additional information and record the COVID-19 illness on their OSHA 300 Logs.
3. The evidence that a COVID-19 illness was contracted at work. This factor is separate and distinct from the evidence available to the employer; OSHA will take into account all reasonably available evidence. This factor, as OSHA notes, cannot be reduced to a specific formula, but certain types of evidence will be instructive in the work-related assessment, including:

• whether several COVID-19 cases develop among workers who work closely together and there is no alternative explanation (likely work-related)
• if an employee's COVID-19 illness is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation (likely work-related)
• if an employee's job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation (likely work-related)
• if an employee is the only worker to contract COVID-19 in their vicinity and their job duties do not include having frequent contact with the general public, regardless of the rate of community spread (likely not work-related)
• if an employee, outside the workplace, closely and frequently interacts with someone (such as a family member or friend) who: 1) has COVID-19; 2) is not a coworker; and 3) exposes the employee during the period in which the individual is likely infectious (likely not work-related)

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.

COVID-19 Inspections

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.

Geographic Areas Where Community Spread of COVID-19 Has Significantly Decreased

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:

• continue to prioritize COVID-19 cases
• utilize non-formal phone 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 COVID-19-related events, and
• utilize the appropriate precautions and personal protective equipment (PPE) when performing inspections related to COVID-19

Geographic Areas with Sustained Elevated Community Transmission or a Resurgence in Community Transmission

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:

• where resources are insufficient to allow for on-site inspections, the inspections for these types of reported events will be initiated remotely with an expectation that an on-site component will be performed if/when resources become available to do so.
• where limitations on resources are such that neither an on-site nor remote inspection is possible, OSHA will investigate these types of reported events using a rapid response investigation to identify any hazards, provide abatement assistance and confirm abatement.
• OSHA will develop a program to conduct monitoring inspections from a randomized sampling of fatality or imminent danger cases where inspections were not conducted due to resource limitations.

Next Steps

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.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.