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November 2, 2021

Please join Nelson Mullins Riley & Scarborough for the 2021 South Florida Health Forum taking place on November 2 in Fort Lauderdale, FL. We look forward to reconnecting with you after a year away from our annual event!

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OnePoint Alert

May 21, 2020

Revised OSHA Guidance Issued on Recording Cases of COVID-19

By Bernard F. Hawkins, Jr.

The U.S. Department of Labor, Occupational Safety and Health Administration (“OSHA”) has issued revised guidance (hereinafter “Revised Guidance Memo”) for recording cases of COVID-19 and includes criteria used for analyzing whether an employer reasonably determined a COVID-19 illness is or is not related to work. The Revised Guidance Memo also references the lower regulatory obligations for smaller employers of 10 or less employees and employers in low hazard industries. It remains to be seen whether the Revised Guidance Memo will be updated in the future and/or will influence workers’ compensation benefits determinations or other employment-related liability.

The revised guidance updates and rescinds, starting May 26, 2020, prior guidance: Memorandum from Lee Anne Jillings & Patrick J. Kapust, OSHA, “Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19),” April 10, 2020. The updated guidance is intended to be time-limited to the current COVID-19 public health crisis and will be in effect until rescinded.

The Revised Guidance Memo provides updated interim guidance to Compliance Safety and Health Officers (“CSHOs”) for enforcement of obligations at 29 CFR Part 1904 regarding recording of occupational illnesses, specifically identification and recording of COVID-19 cases. As provided in the Revised Guidance Memo, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19, if:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
  2. The case is work-related, as defined by 29 CFR § 1904.5; and
  3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

The Revised Guidance Memo discusses how COVID-19 has now been found in nearly all parts of the Country and among industries outside healthcare, emergency response, or correctional institutions. The Revised Guidance Memo notes how the virus is better understood regarding its means of transmission and ways to slow its spread, including evolving measures to protect workers.

“As the virus’s spread now slows in certain areas of the country, states are taking steps to reopen their economies and workers are returning to their workplaces. All these facts — incidence, adaptation, and the return of the workforce—indicate that employers should be taking action to determine whether employee COVID-19 illnesses are work-related and thus recordable.”

Revised Guidance Memo at page 2. The Revised Guidance Memo recognizes that due to the “nature of the disease and the ubiquity of community spread, however, in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” Id.

Recognizing the above facts, the Revised Guidance Memo seeks to exercise enforcement discretion to provide certainty to employers and workers alike in terms of how 29 CFR Part 1904 obligations will be evaluated by OSHA. The Revised Guidance Memo points out that recording a COVID-19 case does not, of itself, mean that the employer has violated any OSHA standard. It also notes, according to existing regulations, that any employer with 10 or fewer employees at all times during the last calendar year and certain employers in low hazard industries have no recording obligations, and need only report work-related COVID19 illnesses that result in fatalities or an employee’s in-patient hospitalization, amputation or loss of an eye. See 29 CFR §§ 1904.1(a)(1), 1904.2. Revised Guidance Memo at page 2.

Because of the difficulties associated with making decisions for “work-relatedness,” the Revised Guidance Memo provides that OSHA is exercising enforcement discretion for how to assess the employers’ reasonable efforts in making work-related determinations and identifies factors that should be evaluated in making these determinations. These factors include:

  • The reasonableness of the employer’s investigation into work-relatedness. In most instances the Revised Guidance Memo instructs that it may be sufficient to (1) ask the employee how the employee believes he/she contracted the virus, (2) while respecting privacy, discuss out-of-work activities that may have resulted in exposure, and (3) review the employee’s work environment for potential COVID-19 exposure – this review being “informed by any other instances of workers in that environment contracting COVID-19 illness.” Revised Guidance Memo at page 3.
  • The evidence available to the employer. The determination should be based upon the information reasonably available to the employer at the time it makes this determination. However, the Revised Guidance Memo indicates that if additional information becomes available later, the employer is instructed to account for this as well.
  • The evidence that a COVID-19 illness was contracted at work. CSHOs should consider all evidence reasonably available to the employer, to determine whether an employer has complied with the recording obligation. “This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness.” Id.
  • Factors making it more likely that a case is work-related:
    • Several cases developing among workers who work closely together and there is no alternative explanation.
    • The employee’s illness was 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.
    • 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.
  • Factors making it less-likely to be work—related:
    • The employee was the only worker to contract COVID-19 in vicinity of job duties and those duties do not include having frequent contact with the general public, regardless of the rate of community spread.
    • The employee, outside of 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.
  • Medical, heath authority, or employee input:
    • Finally, CSHOs should give “due weight to any evidence of causation, pertaining to the employee illness at issue, provided by medical providers, public health authorities, or the employee herself.” Revised Guidance Memo at page 3.

If, after a reasonable and good faith evaluation described in the Revised Guidance Memo, 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.” Revised Guidance Memo at page 3. However, the employer is cautioned that it is important for protection of worker health and safety, as well as for protection of the general public, that an employer examine COVID-19 cases among workers and respond appropriately to protect its workers, regardless of whether a case is ultimately determined to be work-related. 

In summary, the revised OSHA guidance will require employers to carefully review employee cases of COVID-19 against the factors identified in the Revised Guidance Memo to determine whether such illnesses should be recorded as work-related.