On May 19, 2019, OSHA issued another enforcement guidance memorandum
regarding recording COVID-19 cases that rescinds the prior guidance and obligates employers to make at least some work-related determinations regarding employees who contract COVID-19. The new memorandum goes into effect May 26, 2020, and will remain in effect until further notice.
By way of background, OSHA has explained that a COVID-19 case is a recordable illness if (1) an employee is positive or presumptively positive for COVID-19; (2) the case is work-related; and (3) the case results in medical treatment beyond first aid or days away from work. For employers, the "million-dollar" question remains: How does an employer determine whether an employee's COVID-19 case is work-related such that it is recordable on the employer's Injury and Illness logs?
OSHA's May 19 memorandum seeks to help employers address this question.
To start, OSHA will exercise its enforcement discretion to assess employers' efforts in making work-related determinations. This means that employers, at a minimum, must undertake an investigation to determine whether the COVID-19 case is work-related.
To this end, when an employer learns of an employee's COVID-19 illness, the employer should, at a minimum:
Ask the employee how he believes he contracted the COVID-19 illness;
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
Review the employee's work environment for potential COVID-19 exposure.
The employer should base its work-related determination should be based on the information reasonably available it at the time; however, if the employer later learns more information related to an employee's COVID-19 illness, the employer should then take that information into account and revisit whether the illness is work-related.
The memorandum explains that after a reasonable and good faith inquiry, if the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.
The memorandum instructs Compliance Officers to consider the questions below when determining whether an employer has complied with its recording obligation. That is, evidence and information regarding answers to these questions may weigh in favor of or against work-relatedness.
By way of background, OSHA has explained that a COVID-19 case is a recordable illness if (1) an employee is positive or presumptively positive for COVID-19; (2) the case is work-related; and (3) the case results in medical treatment beyond first aid or days away from work. For employers, the "million-dollar" question remains: How does an employer determine whether an employee's COVID-19 case is work-related such that it is recordable on the employer's Injury and Illness logs?
OSHA's May 19 memorandum seeks to help employers address this question.
To start, OSHA will exercise its enforcement discretion to assess employers' efforts in making work-related determinations. This means that employers, at a minimum, must undertake an investigation to determine whether the COVID-19 case is work-related.
To this end, when an employer learns of an employee's COVID-19 illness, the employer should, at a minimum:
Ask the employee how he believes he contracted the COVID-19 illness;
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
Review the employee's work environment for potential COVID-19 exposure.
The employer should base its work-related determination should be based on the information reasonably available it at the time; however, if the employer later learns more information related to an employee's COVID-19 illness, the employer should then take that information into account and revisit whether the illness is work-related.
The memorandum explains that after a reasonable and good faith inquiry, if the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.
The memorandum instructs Compliance Officers to consider the questions below when determining whether an employer has complied with its recording obligation. That is, evidence and information regarding answers to these questions may weigh in favor of or against work-relatedness.
Read memorandum at:
