By Jared Rothstein, Senior Manager, Regulatory Affairs

May 20, 2020 – OSHA has issued two revised guidance memos on recordkeeping and enforcement in response to the COVID-19 pandemic. On May 26, 2020, the previous memos from April on these topics will be rescinded, and the new memos will go into and remain in effect until further notice. Summaries of the memos are provided below:

Revised Enforcement Guidance for Recording Cases of COVID-19:
This memo updates OSHA’s interim guidance for enforcing the requirements of recording cases of COVID-19.

The guidance maintains that OSHA considers COVID-19 a recordable illness, and that employers are responsible for recording cases of COVID-19, if: (1) the case is a confirmed case of COVID-19 via a positive test; (2) the case is work-related; and (3) the case involves one or more of the general recording criteria such as death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. 

The memo however has revised how to determine work-relatedness. While OSHA’s recordkeeping guidance from April relieved employers from having to make work relatedness determinations, this memo states that employers should now be taking individualized action to determine whether employee COVID-19 illnesses are work-related and thus recordable based on information reasonably available to the employer.

In evaluating work-relatedness, OSHA suggests the following: “Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his 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 SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.”

The following evidence may be considered by OSHA to potentially demonstrate COVID-19 work-relatedness: several cases develop among workers who work in close proximity to one another; if a new positive case shortly follows close exposure to a customer/coworker who also has tested positive; if job duties involve close exposure to the general public in a region experiencing high community transmission.

If the employer cannot determine whether it is more likely than not that workplace exposure led to a positive case of COVID-19 based on the employee inquiry and available evidence, the employer does not need to record that COVID-19 illness as a recordable incident.

Updated Interim Enforcement Response Plan for COVID-19:
This memo provides updated instructions and guidance to Area Offices and compliance safety and health officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports.

In regions where COVID-19 transmission has significantly decreased, OSHA will return to the inspection planning policy that OSHA relied on prior to the start of the pandemic. In workplaces with medium or low risk to COVID-19 exposure, fatalities, imminent danger reports and life-critical unprogrammed activities (e.g., falls, struck-by, caught-in/between, or electrocutions) will likely result in on-site inspections. Formal complaints, such as complaints related to COVID-19 exposures, may also be inspected on-site, based on case-specific facts or resource limitations constraining such investigations. OSHA will continue to prioritize COVID-19 cases, and will utilize non-formal phone/fax investigations or rapid response investigations in circumstances where OSHA has historically performed such inspections.

In high-risk workplaces or where a local area is experiencing either a sustained elevated community transmission or a resurgence in community transmission, OSHA will exercise its discretion for prioritizing COVID-19 fatalities and imminent danger exposures for inspection. 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. OSHA will also utilize non-formal phone/fax investigation instead of an on-site inspection in industries where doing so can address the relevant hazard(s).

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