Recently there has been a noticeable increase in complaints filed by employees with the Occupational Health and Safety Administration (“OSHA”) concerning COVID-19 infection control procedures. Employees have complained about a lack of enforcement or implementation of COVID-19 safety measures such as mask wearing, temperature checks, and proper social distancing. Although OSHA has not implemented a workplace safety standard specifically for COVID-19, it is possible for employers to be cited under OSHA’s “General Duty Clause” if they put employees at risk of death or serious injury. Accordingly, it is imperative for employers to seek OSHA compliance and seek legal counsel upon receipt of an OSHA complaint.
OSHA’s Reporting Guidance for Workplace COVID-19 Cases
OSHA has stated that COVID-19 illnesses are likely work-related when:
- Several cases develop among those who work closely together;
- One co-worker comes into close contact with another co-worker who has a confirmed case of the virus; and
- If the affected employee’s job duties require frequent and close exposure to the public with ongoing community transmission.
On May 19, 2020, OSHA released the “Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19).” The enforcement memo provides that employers are expected to undertake reasonable inquiries when they learn of an employee’s COVID-19 illness while respecting the employee’s privacy. This can be accomplished by (1) asking employees how they believe they contracted COVID-19; (2) discussing employees’ work and out-of-work activities that may have led to the COVID-19 illness (while still maintaining some degree of privacy regarding off-duty conduct); (3) reviewing employees’ work environments for potential virus exposure.
According to the enforcement memo, employers are instructed to report cases of COVID-19 on OSHA injury logs if the case is “work-related,” meaning that exposures within the workplace (a) caused the injury or illness; (b) contributed to the injury or illness; or (c) significantly aggravated a pre-existing injury or illness.
While OSHA bears the burden of establishing that the illness was work-related if it wants to challenge an employer’s failure to properly record an incident, employers are nonetheless required to show in all instances that they made a good-faith attempt to determine whether the illness was, in fact, work-related.
Additional Reporting Requirements and Timelines
In addition to the OSHA forms 300 and 301, OSHA mandates the reporting of work-related hospitalizations within 24 hours and deaths within 8 hours. If the work-related incident does not immediately result in a fatality, it needs to be reported within 30 days if it ultimately results in death.
The OSHA 300 Log and OSHA 301 Report must be completed within seven calendar days of receiving “notice” that a covered employee has suffered any work-related injury or illness subject to OSHA reporting. Any failure to properly maintain records may result in OSHA citations if OSHA can document either that the employer disregarded past directives concerning the need to maintain records or the employer purposefully deviated from, or was indifferent to, OSHA’s recordkeeping mandates.
If you have any questions about OSHA compliance, or need legal advice after an incident of COVID-19 exposure in your workplace, please contact an MMB attorney.