OSHA Now Requires Employers to Make Work Related Determinations in COVID-19 Cases

On May 19, 2020, OSHA issued a memorandum to its Regional Administrators and State Plan Designees. This new guidance went into effect Monday, May 26, 2020, and will remain in effect until further notice.

When is COVID-19 Recordable?

COVID-19 is a recordable illness for OSHA purposes when:

• An employee has tested positive for COVID-19;
• The employee’s COVID-19 is work-related; and
• The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

How Do You Determine if the Positive Result is Work Related?

By conducting a reasonable investigation based on information readily available at the time of the positive test result, including:

• Asking the employee how he/she believes he/she contracted the COVID-19 illness;
• Asking the employee about time away from work and living conditions that may have led to the COVID-19 illness; and
• Reviewing the employee’s work environment for potential exposure, including other positive test results in the workspace.
• Any relevant information learned following completion of the investigation should also be considered.

Examples of What Is Likely Work-Related and Not Work-Related:

• COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation
• A 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

Note: If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 positive test result.

OSHA will only exercise enforcement discretion after the employer conducts the good faith inquiry into the scenarios described above, and if the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19. What does this mean in plain English?  If you have a positive case and you determine it wasn’t workplace related, these are the cases that OSHA is going to focus its inspection and enforcement efforts towards.

Increased In-Person Inspections:

The new guidance directs:

• Increase in-person inspections in areas of lower community spread
• Continue to prioritize in-person inspections for areas with elevated community spread of resurgence in community spread
• Prioritize inspections for COVID-19 fatalities and imminent danger exposures
• Continue to identify the following as applicable standards that inspectors will be evaluating during inspections:
  • 29 CFR Part 1904, Recording and Reporting Occupational Injuries and Illness
  • 29 CFR § 1910.132, General Requirements – Personal Protective Equipment
  • 29 CFR § 1910.133, Eye and Face Protection
  • 29 CFR § 1910.134, Respiratory Protection
  • 29 CFR § 1910.141, Sanitation
  • 29 CFR § 1910.145, Specification for Accident Prevention Signs and Tags
  • 29 CFR § 1910.1020, Access to Employee Exposure and Medical Records
• Reiterates that OSHA will rely on the General Duty Clause to address deficiencies not addressed by OSHA standards.
• New guidance indicates that the first criterion for a General Duty Clause citation can be met where there is potential exposure to the virus in the workplace. Previously, OSHA had implemented the much higher burden that there needed to be “clear evidence that an employee was exposed to the virus in the workplace.”
• Violations will normally be classified as serious.

All employers should be monitoring OSHA guidance documents and resources related to COVID-19 available at www.osha.gov.  Here is recap of where we are so far:

• Prepare a COVID-19 Safety Plan: On March 9, 2020, OSHA, in collaboration with the CDC, issued Guidance on Preparing Workplaces for COVID-19. This publication provides employers across all industries with guidance on how to prepare for the risks associated with COVID-19 and address those risks.
  OSHA recommends that every employer develop an infectious disease preparedness and response plan that assesses the risk associated with each worksite and job task, and then address those risks based on the following hierarchy of controls (listed from most effective to least effective): engineering controls, administrative controls, safe work practices, and personal protective equipment (PPE). OSHA stresses the importance of implementing basic infection prevention measures, effective communications, and maintaining flexibility to adapt to evolving circumstances.

• Respiratory Protection: OSHA has issued several guidance documents to address concerns over N95 respirator shortages.
• Annual Fit Testing: On March 14, OSHA issued temporary enforcement guidance for Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak. This guidance directs OSHA inspectors to exercise enforcement discretion with respect to the annual fit testing requirement in 29 C.F.R. § 1910.134(f)(2), as long as employers make good faith efforts to comply with 29 C.F.R. § 1910.134; use only NIOSH-certified respirators; implement strategies to optimize the supply of N95 respirators; perform initial fit tests with the same model, style and size respirator that the worker will be required to wear; inform workers that annual fit testing is temporarily suspended; explain the importance of performing a user seal check; conduct a fit test if they observe visual changes in the employee’s physical condition that could affect respirator fit; and remind workers to inform their supervisor or respirator program administrator if the integrity and/or fit of their respirator is compromised. Note: OSHA expanded this guidance to all industries on April 8, 2020.
• Reuse of and Expired Respirators: On April 3, OSHA issued Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) It permits the extended use or reuse of N95 respirators, as well as the use of N95 respirators that are beyond the manufacturer’s recommended shelf life in cases where the employer has made a good faith effort to obtain alternative respirators; the employer has monitored its supply of N95s and prioritized their use according to CDC guidance; surgical masks and eye protection have been provided as an interim measure to protect against splashes and large droplets, and other feasible measures have been implemented to reduce the need for respiratory protection.
• Respirators Approved by Other Countries: On April 3, OSHA also issued Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other Countries or Jurisdictions During the COVID-19 Pandemic. This guidance permits the use of respirators that are certified under certain standards of other countries or jurisdictions in circumstances where the employer has implemented other feasible measures to reduce the need for respiratory protection; the employer has made a good faith effort to obtain other appropriate respirators, including NIOSH-certified equipment or equipment that was previously NIOSH-certified but has since expired; in healthcare settings, the employer has monitored its supply of N95s and prioritized their use according to CDC guidance; and surgical masks and eye protection have been provided as an interim measure to protect against splashes and large droplets.
• Decontamination of Respirators: On April 24, OSHA issued Enforcement Guidance on Decontamination of Filtering Facepiece Respirators in Healthcare during COVID-19 Pandemic. This guidance identifies acceptable methods for decontaminating N95 respirators that are subject to re-use and outlines employer obligations for the re-use of respirators that have been decontaminated through these methods.
• Annual or Recurring Audits, Reviews, Training, or Assessments: On April 16, OSHA issued guidance advising they will exercise enforcement discretion with respect to training, audit, assessment, inspection, and testing requirements where an employer has made good faith effort to comply, but has been unable to, due to the COVID-19 pandemic. Examples of the requirements subject to this discretion include annual audiograms, annual PSM requirements, HAZWOPER training, respirator fit testing and training, construction crane operator certification, and medical evaluations for health standards.
• Industry-Specific Resources: OSHA has issued guidance and resources for several industries that are facing unique challenges due to COVID. In particular, food processing plants.
• Additional Resources for Food Processing:

Farm-to-Fork Post COVID-19

Interim Guidance from CDC & OSHA Regarding Meat and Poultry Processing

[View source.]