If there is one thing we have learned during this whole COVID-19 pandemic, it is that every day there are new challenges upon us. And with any new challenges, there is often trial and error to determine the best course of action. And when it comes to making necessary changes to adjust to the changing times, government agencies are no exception as OSHA has announced that there will be a new enforcement policy regarding COVID-19 in the workplace that would supersede a previous memo released just a month prior.
OSHA’s previous policy released in April only required employers in the healthcare industry, emergency response organizations, and correctional institutions to make work-related determinations of COVID-19 cases. Under the old memo, all other employers were exempt except in cases in which “objective evidence” existed that a COVID-19 infection was work-related or the evidence was “reasonably available” to the employer. Now with states taking steps to reopen their economies and workers returning to their jobs, OSHA is exercising its enforcement discretion to provide further direction to employers and workers in order to adapt to our “new normal” in the workplace. Now under the new guidance memo announced on May 19th, OSHA states that COVID-19 cases are now recordable for all employers under the following 3 conditions:
- The illness is confirmed as COVID-19.
- The illness is work-related as defined by 29 CFR 1904.5, which states that you must consider an illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition.
- The case involves at least one of the general recording criteria listed in 29 CFR 1904.7. These criteria include days away from work, medical treatment “beyond first aid,” loss of consciousness, restricted work, or a significant illness diagnosed by a licensed physician.
This change in policy can create a unique situation in the workplace, because as we know this is a once in a lifetime (hopefully) set of circumstances. With that being said, when determining whether an employer has complied with this revised policy, OSHA has also instructed their compliance officers to consider the reasonableness of the employer’s investigation into whether the COVID-19 case was work-related, the evidence available to the employer, as well as proof that COVID-19 was contracted at work.
There is however one exception to this new policy, as employers with no more than 10 employees and certain employers that are considered to be in “low-hazard industries” do not have an obligation to report COVID-19 cases unless a work-related illness results in death, in-patient hospitalization, amputation or loss of an eye. To see the revision in its entirety please see the link below: