On May 19, 2020, the U.S. Department of Labor issued two COVID-19 related Enforcement Memos to provide updated guidance to OSHA investigators: (1) Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (“Revised Recordkeeping Guidance”), which reinstates  employers’ recordkeeping obligations for COVID-19 cases (29 CFR Part 1904) and (2) Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)  (“Updated Enforcement Response Plan Guidance”), which generally returns to  pre-COVID investigation policies, except to maintain COVID-19-related cases as a top priority and mandate the following of certain COVID-19-related precautions.

Revised Recordkeeping Guidance

Under OSHA’s general record keeping requirements, employers must report work-related fatality and significant work-related injuries or illnesses that results in loss of consciousness, days away from work, restricted work or transfer to another job, or medical treatment beyond first aid.

On April 10, 2020, OSHA issued COVID-19-related recordkeeping guidance (the “April 10 Guidance”), which focused on three specific industries:  healthcare, emergency responders and correctional institutions, recognizing the difficulty that these employers might have making determinations about whether workers who contracted COVID-19 did so due to exposures at work. The April 10 Guidance created a rebuttable presumption of work-relatedness and recordkeeping obligations for COVID-19-related fatalities, hospitalizations and positive tests. The April 10 Guidance, did not, however, require employers in other sectors to make work-relatedness determinations unless there was objective evidence of a work connection and the evidence was reasonably available to the employer.

With return-to-work protocols underway in most states as COVID-19 infections rates have begun to slow in certain areas, OSHA has rescinded the April 20 Guidance and has reinstated the agency’s work-relatedness analysis for all employers. Specifically, under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if: (1) the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC); (2) the case is work-related as defined by 29 CFR § 1904.5 (3) the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

The Revised Recordkeeping Guidance also lists considerations for investigators (and employers) in determining work-relatedness:

The reasonableness of the employer’s investigation into work-relatedness:

• Employers should not be expected to undertake extensive medical inquiries, given employee privacy concerns and that most employers’ lack of expertise in this area.
• When an employer learns of an employee’s COVID-19 illness, the employer should:
  • 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 SARS-CoV-2 (e., the virus that causes COVID-19) exposure, taking into consideration any other instances of workers contracting COVID-19 illness.

The evidence available to the employer:

The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination, as well as information an employer may later learn.

The evidence that a COVID-19 illness was contracted at work.

The OSHA investigators should take into account all reasonably-available evidence to prove whether an employer has complied with its recording obligation. OSHA investigators are instructed to give due weight to any evidence of causation, pertaining to the employee illness provided by medical providers, public health authorities, or the employee herself.

OSHA acknowledges  that the analysis cannot be reduced to a ready formula, but notes that certain types of evidence may weigh in favor of (or against) work-relatedness, including for example:

• COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation;
• An employee’s COVID-19 illness is likely work-related if it is 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; and
• An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in an area with ongoing community transmission and there is no alternative explanation.

Conversely,

• An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread; and
• An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who has COVID-19; is not a coworker, and exposes the employee during the period in which the individual is likely infectious.

If, after a reasonable and good faith inquiry, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.

Updated Enforcement Response Plan Guidance

The Updated Enforcement Response Plan Guidance for COVID-19 provides instructions and guidance to OSHA Area Offices and compliance safety and health officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports.  It rescinds OSHA’s prior April 13, 2020 Interim Enforcement.

In geographic areas where community spread of COVID-19 has significantly decreased, OSHA will return to its pre-COVID-19 practices when prioritizing reported events for inspections, except that:

• OSHA will continue to prioritize COVID-19 cases;
• OSHA will utilize non-formal phone/fax investigations or rapid response investigations in circumstances where OSHA has historically performed on-site inspections when necessary to assure effective and efficient use of resources to address COVID-19-related events; and
• In all instances, the Area Director (AD) will ensure that CSHOs utilize the appropriate precautions and personal protective equipment (PPE) when performing inspections related to COVID-19.

In geographic areas experiencing either sustained elevated community transmission or a resurgence in community transmission of COVID-19, OSHA will:

• Continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection. Particular attention for on-site inspections will be given to high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19, as well as workplaces with high numbers of complaints or known COVID-19 cases.
  • Where resources are insufficient to allow for on-site inspections, inspections for these types of reported events will be initiated remotely with an expectation that an on-site component will be performed if/when resources become available.
  • Where limitations on resources are such that neither an on-site nor a remote inspection is possible, OSHA will investigate using a rapid response investigation (RRI) to identify any hazards, provide abatement assistance, and confirm abatement. RRIs are OSHA’s offsite investigation process conducted in response to an employer’s report of a severe injury. The RRI generally does not involve an onsite inspection of the workplace, rather, an employer is expected to conduct its own investigation into the work-related incident and share its findings with OSHA.
  • OSHA will develop a program to conduct monitoring inspections from a randomized sampling of fatality or imminent danger cases where inspections were not conducted due to resource limitations.

Both May 19, 2020 memoranda, are “intended to be time-limited to the current public health crisis,” and will be effective on May 26, 2020 and will remain in effect until further notice.