April 16, 2020
The Occupational Safety and Health Administration (OSHA) issued new guidance last week that partially relieves employers of the responsibility to investigate and record work-related cases of COVID-19 illnesses.
Although companies must still record and report cases of COVID-19 where there “is objective evidence that a COVID-19 case may be work-related,” OSHA said it will not force companies to investigate “work-relatedness” in cases where it is unclear if the employee contracted the virus at work or brought it to work after having been exposed elsewhere.
“This enforcement policy will help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission,” the OSHA guidance states.
However, employers must continue to investigate all COVID-19 cases among employees and record all of those acquired at work. According to OSHA, employee reporting will play a major role in helping companies make work-relatedness determinations.
According to the guidance, employers are required to record cases whenever:
- There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among employees who work closely together without an alternative explanation.
- The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.
The new OSHA guidance has been met with significant criticism in the press and on social media. In fact, David Michaels, a professor of public health at George Washington University and the longest serving head of OSHA, asked in a tweet shortly after the guidance was released, “OSHA is kidding, right?”
Critics like Michaels actually want OSHA to issue an emergency standard. In an interview with The Washington Post, Michaels said some OSHA staff members are frustrated they can’t do more to protect workers. This week, using the hashtag #WhereIsOSHA, Michaels said “OSHA is missing in action. 12 weeks ago safety and health experts said OSHA should issue an emergency standard. We’re in a massive worker safety crisis, with thousands infected and still no standard.”