OSHA Issues Enforcement Guidances on Recording COVID-19 Cases and on Its Intention to Consider Good Faith Attempts to Comply with OSHA Requirements During the COVID-19 Pandemic

May 20, 2020
May 20, 2020 Update.  On May 19, 2020 OSHA announced that the below interim guidance on its recordkeeping requirements for recording cases of COVID-19 will be rescinded on May 26, 2020.  Our blog post on OSHA’s revised guidance on this topic is available here.

April 20, 2020 Update.  On April 16, 2020 OSHA issued an interim enforcement memorandum which recognizes that employers may face difficulties complying with requirements to conduct certain annual or recurring audits, reviews, training, or assessments due to the ongoing health emergency.  In this memorandum, OSHA provides that during an inspection, OSHA Area Offices will assess an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training or assessments and will evaluate whether the employer made “good faith efforts to comply with applicable OSHA standards and, in situations where compliance was not possible, to ensure that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained.”  OSHA Area Offices will also consider any interim alternative protections implemented or provided to protect employees and whether the employer took steps to reschedule the required annual activity as soon as possible.   This new guidance has been incorporated into this updated post.
 
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On April 10, 2020 the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued an interim enforcement memorandum on its recordkeeping requirements for recording cases of COVID-19.  In recognition that an employer may not be able to determine whether a confirmed COVID-19 case is work-related, OSHA will not enforce its recordkeeping rule that requires an employer to determine whether a COVID-19 transmission is work-related, absent the employer having objective evidence reasonably available to the employer that a confirmed COVID-19 case may be work-related.  This exception does not apply to employers in the healthcare industry, emergency response organizations, and correctional institutions.

Guidance for Recording Cases of COVID-19

OSHA’s April 10, 2020 guidance states that COVID-19 is a recordable illness, and that employers are therefore responsible for recording cases of COVID-19 if the following three criteria are met:
  1. The case is a confirmed case of COVID-19;
  2. The case is work-related, meaning that an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness; and
  3. The case results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or the case otherwise involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.
Because of the difficulty of making determinations about whether a case of COVID-19 is “work-related,” OSHA will not enforce the recording requirements for most employers unless:
  1. Objective evidence exists that a COVID-19 case is work-related, such as the existence of a number of cases developing among workers who work closely together without an alternative explanation; and
  2. That evidence is reasonably available to the employer, such as when employees provide that information to the employer, or when an employer learns of that information in the ordinary course of business.
This guidance is “intended to be time-limited to the current public health crisis” and will remain in effect until OSHA provides further notice.

Employers in the healthcare industry, emergency response organizations (including emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make work-relatedness determinations for cases of COVID-19. 

Guidance on Intention to Consider Good Faith Attempts to Comply with OSHA Requirements During the COVID-19 Pandemic

OSHA’s April 16, 2020 enforcement guidance recognizes that employers may face difficulties in complying with OSHA standards that require annual or recurring audits, reviews, training, or assessments due to the COVID-19 pandemic (e.g., annual audiograms, annual process safety management requirements, hazardous waste operations training, respirator fit testing and training, maritime crane testing and certification, construction crane operation certification, or medication evaluations).  

The guidance therefore provides that OSHA Compliance Safety and Health Officers “should evaluate whether the employer made good faith efforts to comply with applicable OSHA standards and, in situations where compliance was not possible, to ensure that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained.”  This good faith determination will consider factors including whether (i) the employer thoroughly explored all options to comply with the applicable OSHA standards (e.g., the use of virtual training or remote communication strategies); (ii) interim alternative protections were implemented or provided to protect employees, such as engineering or administrative controls; and (iii) the employer took steps to reschedule the required annual activity as soon as possible.  If an employer cannot comply with OSHA-mandated training, audit, assessment, inspection, or testing requirements because local authorities required the workplace to close, the employer should demonstrate a good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace.  A failure to demonstrate such efforts to comply may result in a citation under OSHA’s preexisting enforcement policy.

The guidance also states that OSHA intends to develop a program to conduct monitoring inspections from a randomized sampling of cases where violations were noted but not cited as a result of this guidance, “to ensure that corrective actions have been taken once normal activities resume.”

As with the April 10, 2020 guidance discussed above, this guidance is “intended to be time-limited to the current public health crisis” and will remain in effect until OSHA provides further notice.

The Coronavirus situation is fluid, and laws are changing rapidly.  Our recent memoranda and other information discussing various aspects of Coronavirus can be found here.

DOL