This is the second post in a series addressing guidance for employers on operating safely during the COVID-19 pandemic. This post will examine information provided by the Occupational Safety and Health Administration (OSHA). As a reminder, the guidance of each agency needs to be considered and integrated into any reopening plan. That reopening plan and COVID-19 protocol should be in writing and communicated to employees.
OSHA has the mission of ensuring that workers are provided safe and healthy working environments. To fulfill its mission, OSHA promulgates guidance and regulations. OSHA also has investigatory and enforcement powers, some of which are through the Department of Labor (DOL). During the COVID-19 pandemic, OSHA has issued a series of publications to help employers prepare for and respond to COVID-19 in the workplace. Common questions addressing OSHA’s recent guidance is discussed next.
What guidance has OSHA provided employers on how to make the workplace safe during the COVID-19 pandemic?
OSHA has issued a series of guidance and alerts over the past few months. OSHA’s publications can be divided into guidance for all workplaces and supplemental alerts that are industry-specific. OSHA has a dedicated COVID-19 site that can be accessed here. Employers should make a habit of periodically checking OSHA’s site, as it is updated with new alerts on a regular basis.
As a reminder, the OSH Act’s General Duty Clause, which requires employers to provide a workplace free of hazards, applies to all industries. In terms of how employers can ensure they are meeting OSHA’s standards during the COVID-19 pandemic, OSHA issued Guidance on Preparing Workplaces for COVID-19. This guidance applies to all types of worksites and provides details on what specific control measures are needed according to the level of risk of a particular position or workplace generally. Universal protective measures include:
- preparing an infectious disease preparedness and response plan for the workplace;
- implementing basic infection prevention measures like handwashing, additional cleaning of the worksite, respiratory etiquette, remote work or social distancing at the worksite, and policies that encourage employees to stay home while sick;
- identification and isolation of employees that may have COVID-19;
- engineering controls like air filtration systems and physical barriers between employees and/or customers;
- administrative controls like training, reduced travel, staggering start times or working at reduced capacity if remote work is not possible; and
- providing employees necessary personal protective equipment (PPE) dependent on the level of risk of exposure for the particular position.
One area that has evolved over the course of the pandemic is the use of face coverings as a prevention method. While OSHA has always identified properly-fitted N95 respirator masks and surgical masks as necessary PPE for higher risk positions, the CDC initially did not recommend face coverings for general use. That changed in April 2020 when the CDC issued updated recommendations for the use of cloth face coverings to limit transmission in circumstances when social distancing is more difficult. This change illustrates how important it is for employers to stay up to date on the latest guidance and recommendations from all sources and revise its COVID-19 policy and protocols as needed.
Following its initial publication providing general guidance, OSHA issued a series of industry specific alerts for:
- Rideshare and taxi companies;
- Retail pharmacies;
- Nursing homes and long-term care facilities;
- Restaurants or other vendors offering curbside pick-up;
- Package and delivery workers;
- Dental practitioners;
- Construction industry;
- Manufacturing industry;
- Retail workers; and
- Meat and poultry processors (issued jointly with the CDC).
If an employer operates in one of the industries subject to a specific alert, the best practice is to carefully review the guidance provided in the alert, as well as OSHA’s general guidance, then incorporate whatever is applicable into the written COVID-19 protocol. As detailed below, when investigating and enforcing its standards for COVID-19 matters, OSHA will also consider whether the employer is following the most recent CDC guidance, thus making that another area employers should consider and integrate into their COVID-19 protocols.
What are the OSHA recording requirements for COVID-19?
OSHA’s new guidance on recording obligations for COVID-19 cases became effective May 26, 2020. Employers should note this rescinds earlier guidance on this point, which excused certain employers from recording COVID-19 cases based on the difficulty in determining whether it was work-related.
Now, employers that are otherwise required to record work-related injuries and illnesses on OSHA Form 300 are also required to record COVID-19 cases if:
- the existence of COVID-19 is confirmed by at least one positive test;
- the COVID-19 infection is work-related; and
- the COVID-19 infection causes an employee to seek medical treatment beyond first aid, results in lost workdays or restricted duty, or causes a loss of consciousness or death.
Consistent with its earlier acknowledgement that it is difficult for an employer to determine whether a COVID-19 diagnosis is work-related given the ease in which it spreads throughout the community generally, OSHA has provided guidance on how it will enforce the requirement to record COVID-19 cases. OSHA’s considerations will include:
- The reasonableness of the employer’s investigation into work-relatedness. As an initial point, this confirms an employer who has recording obligations under OSHA will need to investigate each known COVID-19 case among its workforce. Since OSHA may review the decision to record COVID-19 cases, this investigation should be documented and the documentation maintained, keeping in mind confidentiality requirements for an employee’s medical information.
OSHA provides that, in most circumstances, once an employer learns an employee has contracted COVID-19, it will be sufficient to:
- 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 COVID-19 exposure.
OSHA notes that the review of the work environment should take into consideration whether other employees in that same environment have contracted COVID-19. This portion of the investigation is discussed in more detail below.
- The evidence available to the employer. OSHA’s investigators are instructed to consider what was reasonably available to the employer at the time it conducted its investigation. Employers should note however that they are not excused from considering information that becomes available after the time they initially learn an employee has tested positive, and that later-acquired information also should be considered in the decision whether to record the illness.
- The evidence that a COVID-19 illness was contracted at work. While OSHA acknowledges there is no “formula” to determine whether the employee contracted COVID-19 at work, it lists the following as considerations to help make this determination:
- 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.
- An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- 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.
- 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 (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
OSHA also instructs its investigators to consider any evidence of causation for the COVID-19 diagnosis provided by medical providers, public health authorities, or the employee herself.
Since employers now know what an OSHA investigator will consider when examining the decision to record, employers should tailor their investigation to the points listed above. In terms of the ultimate decision on whether to record an employee’s positive COVID-19 diagnosis, OSHA’s recent guidance notes that, if after a good faith investigation, an employer cannot determine whether it was more likely than not that the employee contracted COVID-19 as a result of the workplace, it does not need to record the diagnosis. OSHA specifically notes that, regardless of whether the illness is work-related, the employer still needs to take whatever steps are needed to make the workplace safe in light of a positive COVID-19 test.
If, however, the investigation supports a determination that the COVID-19 diagnosis is work-related, it should be coded as a respiratory illness on the Form 300. As is typically the case, if an employee requests it, the employer should not include the employee’s name as part of the record.
Employers should note that recording a COVID-19 illness on the OSHA Form 300 acknowledges that the illness is work-related. This may also have repercussions from a workers’ compensation perspective. Because of this potential overlap, employers may want to consult with counsel during this process.
Can an employee file a complaint with OSHA if he or she feels the workplace is unsafe because of COVID-19?
Yes, although this right is not unique to COVID-19. OSHA provides a mechanism by which an employee can submit a complaint that the workplace is unsafe or that the employer is not following OSHA’s standards. While this does not involve a private right of action, it may result in a workplace investigation by an OSHA representative. To date, OSHA has received 1,000’s of complaints related to COVID-19.
When addressing employee complaints regarding workplace safety, employers need to remember that Section 11(c) of the OSH Act protects whistleblowers by prohibiting employers from retaliating against employees for:
- communicating orally or in writing with management personnel about occupational safety or health matters, including asking questions or expressing concerns, requesting safety data sheets, reporting a work-related injury or illness, or requesting copies of OSHA standards or regulations;
- filing a safety/health complaint with OSHA; or
- participating in an OSHA on-site inspection.
Again, although Section 11(c) does not provide a private right of action, the complaint may be pursued by the DOL. The DOL is able to seek all manner of remedies to make the employee whole, including reinstatement, back pay, punitive damages and damages related to emotional distress.
While these prohibitions on retaliation are always in place, employers can expect additional employee questions, and potentially communications involving concerns or complaints regarding workplace safety, during the COVID-19 pandemic. Supervisors and management personnel should be reminded of the OSH Act’s anti-retaliation provisions and respond to complaints or concerns touching on workplace safety appropriately.
How is OSHA enforcing its rules and performing investigations during the COVID-19 pandemic?
Effective May 26, 2020, OSHA will utilize revised guidance for enforcement during the COVID-19 pandemic. While eliminating COVID-19 hazards is still OSHA’s top priority, its revised enforcement guidance makes a distinction for geographic areas depending on whether COVID-19 transmission has significantly decreased. For those areas where COVID-19 transmission is on the decline:
- OSHA will return to following its typical inspection planning procedures per its Field Operations Manual, except:
- COVID-19 cases will continue to be prioritized; and
- Non-formal investigation methods will be used when needed to make sure sufficient resources are available for COVID-19 cases.
For those parts of the country that are seeing an uptick in COVID-19 cases, OSHA will exercise discretion to further:
- prioritize COVID-19 fatalities and imminent danger exposures for inspection, with a special focus on higher-risk worksites, some of which may be done remotely depending on resources; and
- use non-formal means instead of on-site inspections for lower-risk industries if it can still address the identified hazard.
The revised enforcement guidance also discusses how complaints will be processed as workplaces reopen.
In terms of how OSHA will enforce its standards that may be implicated by COVID-19, the recent enforcement guidance makes clear the focus will be on higher-risk workplaces like hospitals and medical facilities. The guidance also provides that citations should be issued only following a heightened level of internal scrutiny and review. In keeping with OSHA’s earlier acknowledgment regarding the challenges some employers face in obtaining PPE, it recommends that its officers still exercise discretion when issuing citations under OSHA’s respiratory standards.
Although there is some discretion in enforcement, OSHA’s updated enforcement guidance specifically notes that employers should also consult the CDC’s website to determine whether they are adequately protecting their workers. Based on that, employers should meet or exceed the CDC’s recommendations (in addition to OSHA’s guidance), as that will be the best defense to an OSHA complaint based on COVID-19.