The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) released new guidance for employers on Friday, April, 10, 2020.  The guidance offers helpful clarifications and scales back enforcement of reporting obligations for many employers.  The guidance became effective upon release and will remain in effect for the duration of the public health crisis.

During the early stages of the COVID-19 outbreak, OSHA took the position that COVID-19 is a “recordable illness.”  The new guidance clarifies that employers are responsible for recording cases of COVID-19 if:

  • The case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention;
  • The case is work-related; and
  • The case involves one or more of the general recording criteria (i.e., the illness results in death, job loss, missed workdays, medical treatment, etc.).

As the outbreak continues to spread through community transmission, many employers raised concerns about the difficulty in determining whether an individual contracted COVID-19 in the workplace.  Generally, an illness is work-related if “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.”  The work environment is the employer’s “establishment” and such “other locations where one or more employees are working or are present as a condition of their employment.”

OSHA’s new guidance recognizes that employers “may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposure at work.”  OSHA will continue to require work-relatedness determinations for workers in the healthcare industry, emergency response organizations (such as EMS/EMTs, firefighters, and law enforcement), and correctional institutions, given the greater risk of work-related transmission of the virus.  For all other industries in areas where there is ongoing community transmission, OSHA will not enforce the regulations requiring COVID-19 reporting except where:

  • There is objective evidence that a COVID-19 diagnosis may be work-related, such as where a cluster of cases emerge among workers in close proximity without an alternative explanation; and
  • The evidence was reasonably available to the employer, such as from reports by employees or information learned during the employer’s general operation or management of the business.

OSHA explained that the relaxed enforcement is intended to “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects.”

Moving forward, employers should review their recordkeeping policies to make sure they are in compliance with the new guidance.  In addition, OSHA appears to be encouraging employers to focus more on workplace safety measures.  Therefore, it is important for employers to continue implementing safety measures in accordance with OSHA’s guidance.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.