ASK WHEN YOU LEARN

OSHA standards for COVID 19, updated on May 19, 2020, uses reporting requirements to turn employers into investigators of their own jobsites.  The employer must use reasonable efforts to reach conclusions on the questions – Has the pandemic visited your worksite? Was the employee’s COVID work-related?

OSHA (the Federal Department of Occupational Health & Safety) regulates employers.  OSHA investigators conduct inspections and issue violations.  OSHA inspectors who work for the Department of Labor have limited resources. These Federal officers also enforce record keeping regulations requiring that workplace incidents to be recorded or reported by employers according to published standards.

INQUIRE OF THE INFECTED PERSON & CHECK THE SITE

Employers who learn their employee has been diagnosed with COVID 19, must conduct an investigation into the work-relatedness (or not) of the employee’s illness. OSHA’s guidance offers a three-step process:

• (1) to ask the employee how they believe they contracted the COVID-19 illness;
• (2) while respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness; and
• (3) review the employee’s work environment for potential SARS-COVID-19 exposure.

IF IT’S WORK RELATED, REPORT IT

OSHA states that COVID-19 cases are recordable if

• the illness is confirmed as COVID-19,
• the illness is work-related as defined by 29 CFR 1904.5 and
• the case involves at least one of the general recording criteria listed in 29 CFR 1904.7. The criteria include days away from work,
  • medical treatment “beyond first aid,”
  • loss of consciousness, and
  • restricted work or transfer to another job.

OSHA’s guidance offers this measuring standard – did the workplace play a causal role in the employee’s viral illness – more likely than not?

OSHA REPORTING RULES BEFORE COVID

OSHA rules mandate recording smaller incidents for annual summary submissions and reporting of significant work injuries. https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.5

OSHA’s enforcement mechanism was show up site inspections, where workers would typically stand down for fear of being seen in violation of and getting cited for any of the work rules.  The COVID based amendment of reporting rules imposes a new kind of enforcement duty onto employers.

OTHER OBLIGATIONS IN CONFLICT

The May 2020 OSHA guidance states that “Recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard”.  Employers have cross currents of concern, where employees become infected with the virus, not just about OSHA workplace violations and citations.

Employers also have obligations to preserve the confidentiality of any health information about individuals they possess under HIPPA.

Another enormous concern for employers is insurance claims for work injuries – both workers compensation and particularly on multi-employer jobsites, general liability for personal injury claims.

EMPLOYERS ARE NOW A PART OF TRACK AND TRACE

Soon enough, State and local governments are going to roll out their track and trace public health plans to contain the spread of virus and people with it. For now, OSHA expects employers to reach conclusions about their own workplaces, which conclusions employers may fear are against their own interests.