I. Introduction
In recent weeks, many businesses have resumed or expanded operations to varying degrees as states and local jurisdictions have issued reopening orders. That means many “non-essential” employees have been or soon will be returning to workplaces across the country, joining the employees of critical infrastructure or “essential” businesses who have continued working throughout the pandemic. Recognizing the growing number of employees returning to work, the Occupational Safety and Health Administration (OSHA) on May 19, 2020, issued updates to two COVID-19 guidance documents addressing the Agency’s enforcement discretion and priorities. The first revised guidance document, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), updates OSHA guidance issued in April and provides more detail on employers’ recording obligations related to COVID-19 cases. The second updated guidance document, Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), relates to OSHA’s handling of COVID-19-related complaints, referrals, investigations and inspections. Both updates—which will take effect on May 26th and supersede their respective predecessor documents—contain valuable information for employers.
II. Revised Enforcement Guidance for COVID-19 Recording Obligations
Unlike the flu, COVID-19 is a recordable illness under OSHA's recordkeeping requirements1 when certain criteria are met, including when the illness is work-related (the case must also be a confirmed case as defined by the Centers for Disease Control (CDC) and involve one or more factors set forth in 29 CFR 1904.7; the criteria that trigger reporting obligations are discussed in a WilmerHale client alert available here).
a. Initial Enforcement Guidance on COVID-19 Recording Obligations
In early April, in one of the first COVID-19 guidance documents it issued during the pandemic, OSHA announced it would exercise discretion in determining whether to enforce its illness and injury recording requirements. Pursuant to that initial enforcement guidance (which remains effective until May 26th), for industries other than healthcare, emergency response, and correctional institutions, a COVID-19 case is potentially reportable only if there is objective evidence that is reasonably available to the employer that the case is work-related. Other than providing a few broad-stroke examples of objective and “reasonably available” evidence, however, that early guidance provided little information for employers to make work-relatedness determinations.
b. Revised Guidance Provides Greater Detail for Employers
With the Revised Enforcement Guidance that takes effect on May 26th, OSHA raises its expectations of employers but in turn provides more detailed direction on the critical work-relatedness determination. OSHA will continue to exercise enforcement discretion—including for employers in the healthcare, emergency response, and correctional institutions industries—but, in a change from its April guidance, expects all employers to take action to determine whether employee COVID-19 illnesses are work-related and thus recordable. The Revised Enforcement Guidance identifies three considerations OSHA compliance officers should apply when assessing whether an employer has made a reasonable determination of work-relatedness, and offers useful detail within each.
- First, OSHA will assess whether the employer undertook a reasonable investigation into work-relatedness. Employers are not expected to conduct extensive medical inquiries, particularly in light of employee privacy concerns and the typical employer’s lack of medical expertise. In most circumstances, it is sufficient for the employer, when it learns of an employee's COVID-19 illness, to: (1) discuss with the employee how he or she believes she contracted the virus; (2) discuss with the employee his or her activities at and outside of work that may have led to contracting COVID-19; and, (3) review the employee’s work environment for potential SARS-CoV-2 exposure, accounting for any other workers in that environment becoming infected.
- Second, OSHA will assess whether employers considered information reasonably available at the time, to determine whether an employer has conducted a reasonable work-relatedness inquiry.
- Third, OSHA provides several examples of the types of evidence that its compliance officers may consider when determining work-relatedness. For example, absent alternative explanations, the following types of evidence suggest that a COVID-19 illness is likely work-related:
- when several cases develop among workers who work in close proximity;
- the employee contracts COVID-19 soon after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19; or,
- the infected employee’s job duties involve frequent, close exposure to the general public in a locality with ongoing community transmission.
On the other hand, the following types of evidence indicate that an employee’s case of COVID-19 is not work-related:
- the employee is the only worker to contract COVID-19 in his or her vicinity and his or her job duties do not include having frequent contact with the general public, regardless of the rate of community spread; or,
- the employee closely and frequently associates with someone outside of the workplace who has COVID-19, is not a co-worker, and exposes the employee during a time when the individual is likely infectious.
c. Considerations for the Workers’ Compensation Context
The additional detail provided in the Revised Enforcement Guidance may be instructive beyond OSHA requirements by aiding employers in work-relatedness determinations for purposes of workers’ compensation claims. If employers can demonstrate that no other employees in the infected employee’s vicinity have contracted the virus, and that the employee’s job duties do not include frequent contact with the general public, employers may be able to show that a case is not work-related for purposes of both OSHA recording requirements and workers’ compensation.
California employers, for example, may borrow from the direction provided in the Revised Enforcement Guidance to rebut the presumption in that state—established by Executive Order N-62-2—that any employee infected with COVID-19 contracted the virus on the job for purposes of eligibility for workers’ compensation benefits. The presumption can be rebutted by “other evidence.” Note, however, that the presumption of work-relatedness established in the Executive Order likely does not change California OSHA (Cal/OSHA) recording provisions (which require an employer to record all employee cases of COVID-19 regardless of work-relatedness), since the Executive Order addresses only eligibility for workers’ compensation benefits. Further, an interpretation to the contrary would run afoul of federal OSHA’s requirement that states with OSHA plans receive federal approval before enacting more stringent recording obligations (see 29 CFR 1904.37(b)).
III. Updated Interim Enforcement Response Plan
OSHA’s Updated Interim Enforcement Response Plan provides OSHA field offices and compliance officers instruction and guidance for addressing COVID-19-related complaints, referrals, and investigations. While the intended audience is OSHA personnel, the plan provides useful insights for employers.
The plan anticipates both that OSHA’s resources could be stretched as more businesses reopen, and that the need for OSHA investigations will vary by geographic area depending on the level of transmission and cases. Under the updated enforcement plan, OSHA will prioritize its on-site inspection resources in areas experiencing sustained elevated community transmission or a resurgence in community transmission of COVID-19. High-risk workplaces (e.g., hospitals and other healthcare providers treating COVID-19 patients), as well as workplaces with high numbers of complaints or known COVID-19 cases, will be prioritized for on-site inspections. If insufficient resources are available to perform an on-site inspection, investigations will be initiated remotely with an expectation that an on-site component will be performed when resources allow. OSHA also plans to develop a program to conduct follow-up monitoring inspections from a randomized sampling of fatality or imminent danger cases where inspections were not conducted due to resource limitations.
In areas where community spread of COVID-19 has significantly decreased, OSHA will continue to prioritize COVID-19 cases but will return to the inspection planning policy in effect prior to the start of the pandemic (as outlined in the OSHA Field Operation Manual, which provides policies and procedures for the enforcement of OSHA standards). When necessary to conserve resources, OSHA will increase its reliance on non-formal, remote investigation methods (e.g., by telephone and fax) in low-risk areas.
The updated enforcement plan also calls for OSHA inspectors to be familiar with the most recent CDC and OSHA guidance, highlighting the need for employers to ensure they are following all federal, state and local guidelines and requirements for workplaces—including by tracking updates to the same and revising internal policies and procedures accordingly. Specifically, the updated enforcement plan reinforces that an employer’s failure to comply with CDC guidance will invite OSHA scrutiny in determining whether an employer has complied with its general duty to protect employees from workplace hazards. More information regarding the most recent CDC guidance for reopening businesses (issued May 19th) is available in a May 21 WilmerHale client alert.
IV. Takeaways
OSHA’s latest enforcement guidance reflects the dynamic and evolving nature of the pandemic. Employers must be prepared to quickly take action to determine whether employee COVID-19 illnesses are work-related and thus recordable. And employers need to be aware of the level of risk in their workplaces and in their communities; businesses in areas with elevated or resurgent community transmission should expect greater attention from OSHA. Employers should continue to monitor emerging developments from OSHA, CDC, and state and local jurisdictions to keep workers safe and maintain compliance with workplace health and safety obligations.
WilmerHale’s employment and environmental/OSHA teams are available to answer developing questions and assist employers navigate their compliance obligations as they reopen or expand operations of their businesses.
