OSHA wants your company to record COVID-19 illness at work. But, it’s not as harsh as it may seem.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has adopted revised policies for enforcing OSHA’s COVID-19 requirements. Among them, its enforcement policy for recording cases of coronavirus.

Here’s what your business needs to know about the new OSHA reporting rules:

Under OSHA’s recordkeeping requirements, coronavirus is a recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:

• Is confirmed as a coronavirus illness;
• Is work-related as defined by 29 CFR 1904.5; and
• Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

But, here’s the thing. It’s not that often that an employer can check all three boxes. And, in its press release, OSHA acknowledges as much:

Given the nature of the disease and community spread, however, in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace. OSHA’s guidance emphasizes that employers must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.

Here are the criteria that OSHA will apply to determine whether an employer has made a reasonable effort.

Coincidentally, or maybe not, President Trump signed this Executive Order yesterday instructing government agencies (OSHA included) to exercise fairness and restraint in administrative enforcement.

Additionally, OSHA stresses that just an employer hasn’t necessarily violated OSHA because it records a coronavirus illness. Plus, employers with ten or fewer employees and certain employers in low hazard industries have no recording obligations. Instead, those businesses only need to report work-related coronavirus illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.

Ew!

Here is a copy of the new OSHA policy, which the agency released yesterday, and which will take effect on May 26, 2020. It replaces prior guidance from April that may have relaxed the reporting rules.

Join us for a Zoom chat tomorrow!

And here is the link to pre-register for tomorrow’s Zoom chat at noon EDT, when David Mohl and I will address the legal and business side of return to work:

1. employee health screening and accommodations;
2. rehiring;
3. restructuring
4. pending COVID-19 legislation, and
5. your Q&A.

Go ahead and ask your hypothetical questions here.