Construction Law Blog

On April 10, 2020, The U.S. Department of Labor (DOL) and the Occupational Safety and Health Administration (OSHA) issued new guidance to compliance officers regarding record-keeping requirements and employee cases of COVID-19. The new guidance takes effect immediately and will be time-limited to the current public health crisis sparked by the COVID-19 virus.

Under current OSHA recordkeeping requirements, employers are responsible for recording cases of COVID-19 if all of the following apply: (1) the case is a confirmed case of COVID-19, (2) the case is “work-related” (i.e., if exposure in the workplace either caused or contributed to the resulting condition), and (3) the case involves either time away from work, restricted work or transfer to another job, medical treatment (beyond basic first aid), loss of consciousness, or death.

The new guidance recognizes the virtual impossibility of determining whether cases of COVID-19 are work-related.  Accordingly, effective immediately, OSHA will no longer enforce recordkeeping requirements to require most employers to determine whether COVID-19 cases are “work-related.” OSHA also explicitly recognizes that most employers should spend their time implementing good hygiene practices in the workplace, rather than on making difficult decisions about whether cases of COVID-19 are work-related. 

Key Take-Aways from the New Guidance

1. Employers in the health care industry, emergency response, and in correctional institutions must continue to investigate all COVID-19 cases pursuant to prior guidelines and record all those that are work-related as defined by prior law.

2. Employers in other industries no longer need to make work-relatedness determinations for COVID-19 cases, except where all of the following apply:

a. There is “objective” evidence that a COVID-19 case “may” be work related (for example, if multiple cases develop among employees who work closely together and there is no other alternative explanation); and

b. The evidence was “reasonably available to the employer,” such as where information about a COVID-19 case is given to the employer by employees.

Those in construction should take note of these new, relaxed guidelines and re-focus efforts on enforcing best practices in the workplace such as distancing and hand-washing, and otherwise mitigating the risk of COVID-19 occurrences in their workplaces. Employers should also remain vigilant and quickly investigate if presented with objective evidence that a COVID-19 case may be work-related. If presented with such evidence, employers must determine whether the COVID-19 case is work-related and otherwise recordable.

If you have any questions about how the new guidance may impact you or your employees, or questions related to best practices during the COVID-19 pandemic, please contact a member of the Hirschler Team.