Important COVID-19-Related Updates for EmployersMay 20, 2020
New COVID-19-Related Recording Requirements
Beginning May 26, 2020, employers who are required to keep Occupational Safety and Health Act (“OSHA”) injury and illness logs must determine if an employee’s CDC confirmed case of COVID-19 which meets recording criteria is job-related and therefore subject to OSHA’s recording requirements. In addition, all employers will be required to determine whether an employee’s CDC-confirmed case of COVID-19-related illness resulting in a fatality or the employee’s in-patient hospitalization, amputation, or loss of an eye is work-related, and therefore recordable. Recording a COVID-19-related illness does not, in and of itself, mean that an employer has violated OSHA. Rather, recognizing the difficulties with determining whether COVID-19 was contracted in the workplace, OSHA has set forth specific considerations it will apply in determining whether an employer complied with this obligation:
- The reasonableness of the employer’s investigation into work-relatedness.
- The evidence available to the employer.
- The evidence that a COVID-19 illness was contracted at work.
OSHA has provided examples of the types of evidence that may weigh in favor of or against work-relatedness:
- COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if it 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.
- An employee’s COVID-19 illness is likely work-related if the 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.
- An employee’s COVID-19 illness is NOT likely work-related if the employee is the only worker to contract COVID-19 in the employee’s vicinity and the employee’s job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- An employee’s COVID-19 illness is NOT likely work-related if the employee, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close 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.
- OSHA’s Compliance Safety Health Officers give due weight to any evidence of causation, pertaining to the employee illness at issue, provided by medical providers, public health authorities, or by the employee.
Employers should make sure they continue to check OSHA updates and guidance, and while complying with HIPPA and privacy laws, designate the appropriate person to: (1) ask the employee how the employee believes 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 coronavirus exposure. Cases of COVID-19 meeting the recording requirements should be recorded as a respiratory illness on the OSHA Form 300 and in accordance with the requirements of 29 CFR § 1904.29. Employers can learn more about OSHA’s Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 COVID-19 at https://www.osha.gov/memos/2020-05-19/updated-interim-enforcement-response-plan-coronavirus-disease-2019-covid-19.
OSHA’s updates on COVID-19 are available at www.osha.gov/coronavirus.
New Guidance from the CDC
The CDC has published a document summarizing its initiatives, activities, and tools in support of the governmental response to the COVID-19 public health crisis. The document describes the CDC’s efforts on expanding testing and advising testing practices and summarizes the President’s three-phased Opening Up America Again plan. In addition to the three phases, the Opening Up America Again plan provides six gating indicators to assess when to move through the three phases.
In support of the Opening Up America Again plan, the CDC is providing technical support to the states, including contract tracing training tools. The document also provides specific guidance for childcare programs, schools and day camps, restaurants and bars, and mass transit, and guidance for employers with high-risk workers. You can find more information on the “CDC Activities and Initiatives Supporting the COVID-19 Response and the President’s Plan for Opening Up America Again” at https://www.cdc.gov/coronavirus/2019-ncov/downloads/php/CDC-Activities-Initiatives-for-COVID-19-Response.pdf.
For more information on this issue or other employment matters, please contact:
Carol M. Goodman at +1 212 592 1465 or [email protected]
Ronald J. Levine at +1 212 592 1424 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
Silvia Stockman at +1 212 592 1583 or [email protected]
© 2020 Herrick, Feinstein LLP. This article is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.