OSHA Inspections Policy, COVID-19 Recordkeeping Obligations Change

The Occupational Safety and Health Administration (OSHA) is going back to its pre-pandemic inspections policy in areas where COVID-19 has significantly decreased, while still prioritizing COVID-19 cases and following additional safety protocols. In a May 19th memo, OSHA indicated it would resume more on-site inspections when it can do so safely while continuing to rely on remote inspections as needed.

Further, OSHA revised its COVID-19 recordkeeping policy to now require all employers with recordkeeping obligations to record relevant COVID-19 cases, where it had previously only focused on health care, first responder, and corrections employers. Employers who keep OSHA records must now engage in the challenge of assessing when a COVID-19 case is considered work-related for OSHA purposes. OSHA did provide some guidance in another May 19th memo, stating:

“It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) 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 (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.”

OSHA went on to provide the following examples:

  • 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.

Employers should be sure to engage in the appropriate investigation of work-relatedness and fully document that investigation to protect themselves from OSHA recordkeeping citations under this new policy.