OSHA Revises Coronavirus Enforcement Policies

The U.S. Department of Labor's (DOL’s) Occupational Safety and Health Administration (OSHA) has issued two revised policies for enforcing OSHA's requirements with respect to the coronavirus. As businesses begin to reopen across the country, OSHA wanted to update these resources to ensure that employers are acting to protect their employees. First, OSHA is increasing in-person inspections at all different types of workplaces. The new enforcement guidance reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available. OSHA staff will continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done. Second, OSHA has revised its previous enforcement policy for recording cases of coronavirus. 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.

Under the new policy, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee coronavirus illnesses for all employers. 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. Employers need to keep in mind that if they have to record a coronavirus illness, it does not necessarily mean that they have violated any OSHA standard. Following existing regulations, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations; they only need to report work-related coronavirus illnesses that result in:

• a fatality,
• an employee's in-patient hospitalization,
• amputation, or
• loss of an eye.