OSHA Guidance Relieves Employers of Duty to Report COVID-19 in the Workplace

On April 10, 2020, the Occupational Safety and Health Administration (“OSHA”) issued Enforcement Guidance for Recording Cases of COVID-19 (the “Guidance”) in the workplace.  Under OSHA’s Guidance, employers—except for employers in the healthcare industry, emergency response organizations, and correctional institutions—do not have to record cases of COVID-19 in the workforce unless there is objective evidence that the COVID-19 occurrence is work-related and the employer had access to that evidence.  The Guidance is attached below in this Alert. 

Typically instances of COVID-19 in the workplace would be subject to OSHA’s recordkeeping and reporting requirements because COVID-19 is classified as a recordable illness.  Under that rule, an employer would be required to record COVID-19 cases in the employer’s workforce.  The Guidance reverses that rule, citing to ongoing community transmission making it difficult to determine whether workers contracted COVID-19 in the workplace or not, and stating that the relief will allow employers to focus on response efforts and implementing good hygiene practices.  Specifically, in reversing the general rule, the Guidance states:

Until further notice, however, OSHA will not enforce 29 CFR § 1904 to require other employers to make the same work-relatedness determinations, except where:

1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
2. The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.
   

This Guidance may have downstream consequences on workers’ compensation claims since the rule specifically acknowledges the “alternative explanation” of “ongoing community transmission” and  weighs against a presumptive finding that COVID-19 in the workplace is work-related. 

Our office is closed pursuant to the Governor’s Business Closure Order, however MacDonald Illig attorneys are working remotely.  Our attorneys are available at any time via e-mail or cell phone.  If you have any questions regarding your employees and workplace, including the aforementioned OSHA Guidance or its impact on your business, please contact one of our attorneys.