Last week, the Occupational Safety and Health Administration (OSHA) issued updated guidelines which require employers to investigate whether employee COVID-19 infections are “work-related” for the purpose of determining whether a record must be made of such infections.
The guidelines go into effect this week and represent a reversal in thinking from OSHA’s previously relaxed position that eased the burden of recordkeeping for most employers outside of professions involving healthcare, corrections and emergency response.
What You Need to Know
The coronavirus pandemic has created a quickly shifting regulatory landscape when it comes to how businesses interact with their employees and customers alike. As businesses look to reopen and the country seeks a return to something resembling normal, there are a variety of logistical obstacles to overcome.
Figuring out ways to keep business moving in a pandemic can be a challenge without having to worry about legal ramifications and meeting government regulations. Building your strategy for returning employees to work has to account for scenarios involving COVID-19 infections cropping up in the workplace and furthermore, employers will need to be prepared to show how the company is meeting federal guidelines for workplace.
So what are the key changes of this latest guidance? According to Michael DeLarco, Managing Partner of Hogan Lovell’s Labor and Employment practice in the Americas, it means being ready to conduct and document a “mini-investigation into a positive COVID-19 test in the workplace.
“The key change is an employer’s investigation must be more than just looking around to see if there are other cases of COVID-19 in the workplace to determine causation,” DeLarco said. “An employer must now make a ‘reasonable and good faith’ inquiry to determine work-relatedness and to determine if it is more likely than not that the employee contracted the illness in the workplace.”
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Defining a COVID-19 infection is significant in that it impacts the way the government tracks and mitigates the spread of the virus to disparate neighborhoods.
Employers will have to report a work related infection to OSHA, which in turn, could trigger an OSHA inquiry.
Why Change the Guidance Now?
The timing of the updated OSHA guidance falls in line with the widespread reopening of businesses around the country, which DeLarco believes is useful for two reasons.
The first is that a number of industries are experiencing numerous cases of COVID-19 in the workplace and businesses simply need a way to respond to that. The second is that at a crucial time when jurisdictions are re-opening, the guidelines provide another method of tracking the spread of the virus in the workplace and communities.
To comply with the new guidelines, employers must make what OSHA is calling a “good faith and reasonable inquiry” into whether the infection is work related. But what does that mean?
The guidance states that it’s sufficient in most cases for the employer, when it learns of an employee’s COVID-19 illness to:
- Ask the employee how they believe they contracted the virus
- While respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness
- Review the employee’s work environment for potential SARS-CoV-2 exposure.
“What this practically means is an employer must do more than just look to see if there are other cases of COVID-19 among co-workers,” DeLarco said. “It needs to inquire into whether the employee had exposure to someone with COVID-19 in the workplace (co-worker, customer, client, etc.), and if not whether the employee may have been exposed outside of the workplace.”