Construction Law Blog

The US Department of Labor and the Occupational Safety and Health Administration (OSHA) have issued new and modified guidance regarding employer record-keeping requirements related to employee cases of COVID-19. The new guidelines, which went into effect on May 26, 2020, replace previous guidance issued by OSHA on April 10 and place increased investigation and recording obligations on employers. The April 10 guidelines were more relaxed than the new guidelines and recognized the difficulty of determining whether COVID-19 cases were “work-related” (i.e., if exposure in the workplace either caused or contributed to the infection).  

With COVID-19 now present in nearly all parts of the country and the gradual reopening of workplaces in all states, the new OSHA guidance places increased responsibility on employers to take certain actions to determine whether employee COVID-19 illnesses are work-related and recordable. In determining whether an employer has complied with these obligations and has made a reasonable determination of “work-relatedness,” OSHA will apply the following considerations:

• When an employer learns of an employee’s COVID-19 illness, the employer should (1) ask the employee how the employee believes that she/he contracted the illness, (2) discuss with the employee her/his work and outside-of-work activities that may have led to the illness (while still respecting employee privacy), and (3) review the employee’s work environment for potential exposure to SARS-CoV-2, the virus that causes COVID-19, paying particular attention to whether other workers in the same environment may have contracted COVID-19.
• If an employer is provided with additional information related to an employee’s COVID-19 illness after the initial reporting, that information should be taken into account in determining whether the employer made a reasonable work-relatedness determination.
• Employers should weigh the following factors in favor of a COVID-19 illness being work-related: (1) several cases developing among workers who work closely together and there is no alternative explanation; (2) a COVID-19 illness that is contracted shortly after lengthy, close exposure to a particular co-worker who has a confirmed case of COVID and there is no alternative explanation; and (3) a COVID-19 illness of an employee whose job duties include frequent, close exposure to the public in a location with ongoing community transmission and there is no alternative explanation.
• An employee’s COVID-19 illness is likely NOT work-related if (1) she/he is the only employee to contract COVID-19 in her/his vicinity and her/his job duties do not include frequent contact with the general public, or (2) outside of the workplace, the employee closely and frequently associates with a person who has COVID-19, is not a co-worker, and who was exposed to the employee during the time when the person was likely infectious.
• OSHA will give “due weight” to any other evidence of causation provided by medical personnel, public health authorities, or the employee. 

If, after a reasonable and good-faith inquiry that is informed by the factors bulleted above, the employer cannot determine whether it is “more likely than not” that an exposure in the workplace was part of the cause of an employee’s COVID-19 illness, then the employer does not need to record the COVID-19 illness, according to the new and modified guidance.

KEY TAKEAWAYS FROM THE NEW GUIDANCE

Construction professionals should take note of the new, more stringent guidelines and become familiar with the factors that OSHA will apply in determining whether an employer has discharged their investigation duties in good faith. Employers should document their decision-making process when determining whether a case of COVID-19 is work-related and also document the increased sanitation practices and other steps they are taking to prevent the risk of exposure to and the spread of COVID-19 in the workplace and on job sites.

Want to discuss OSHA’s new guidance or discuss whether a reported instance of COVID-19 is work-related and reportable? Contact a member of the Hirschler Team.