On May 19, OSHA updated its guidance, stating that COVID-19 illnesses “are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.” Two months later, OSHA provided additional guidance on reporting COVID-19 hospitalizations, but the agency rescinded that guidance two weeks later.
OSHA’s changing guidance has been confusing for employers, says Conn Maciel Carey LLP’s Eric J. Conn, and many have pushed for COVID-19 to be folded into OSHA’s exemption for the common cold and flu when it comes to recordkeeping and reporting. The agency clearly didn’t believe they could do that lawfully, he adds: “The reason is, COVID-19 is not the cold or flu; epidemiologically it’s a different virus, so OSHA can’t just wave a magic wand and say, ‘This is just like the cold or flu, and therefore it’s exempt.’”
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In fact, in its guidance documents issued in April and May, OSHA has basically “doubled-down” on its decision that employers should focus their efforts on determining whether cases of COVID-19 are work-related, he says.
Thankfully, as Conn and his colleagues note in a blog post, one consistent aspect of all of OSHA’s COVID-19 guidance has been “the basic structure for evaluating whether an employee’s COVID-19 case is recordable.” According to the post, the criteria that make a case of COVID-19 recordable by employers are:
- The case of COVID-19 is a confirmed case.
- The case involves one or more of the general recording criteria in 29 CFR 1904.7 (medical treatment beyond first aid; days away from work; etc.)
- The case is work-related, as defined in 29 CFR 1904.5.
Whether cases are reportable is another matter. These are cases when recording the incident on the 300 log is no longer enough—employers must actually pick up the phone and call OSHA.
To determine whether to report a COVID-19 illness to OSHA, employers must conclude whether the case is confirmed and whether it is work-related. If those criteria are met there are other OSHA requirements that employers must examine. See the flowcharts below to help you visualize whether an employee’s COVID-19 case should be considered recordable or reportable.
“The biggest issue in all of this, in my mind, is how to determine whether something is work-related, and the guidance OSHA offered about the existence of any alternative, non-work explanation for the illness undermining work-relatedness even in the face of a demonstrable work-related exposure,” says Conn.
The examples that OSHA gives of circumstances that are likely work-related are clear exposures that occur in the workplace “and there is no alternative explanation,” he adds. “What that means to me is that if there are two identifiable exposures—one at work and one away from work—OSHA’s guidance forces a conclusion that the case is not work-related. That’s where the rubber meets the road, and why I have recommended that so few cases need to be recorded or reported.”
What Are Some Best Practices for Employers?
Employers naturally want to avoid censure, but overreporting workplace illnesses and injuries is a common trap for employers because it can lead to a raft of unintended consequences, says Courtney Malveaux of Jackson Lewis P.C. It potentially exposes a company to closer scrutiny from OSHA and citations that you have to defend, and it can drive up your injury rates in a way that puts your company at a competitive disadvantage, he says.
“Many safety professionals will overrecord and overreport and generally err on the side of caution so they don’t get a violation—that’s how they’re trained,” Malveaux says. It’s not wrong to do so, he continues, but “from a business standpoint I urge caution because I have had clients who have overrecorded and lost business opportunities because they had more entries in their OSHA 300 logs.”
“If you’re doing your diligence and you’re able to justify everything in writing, it’s very important to do that,” he adds. “OSHA is throwing the ball back into the lap of manufacturers and other employers, so they have to make these determinations on their own.”
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You need to watch the video at www.mercola.com for Oct 17 under "newsletter archive" by Reiner Fuellmich about the coming lawsuits starting with the German Federal Government, and coming to the USA! You are writing about OSHA "regulations" which make the wearing of all these "face diapers" illegal because they are NOT designed, evaluated, or qualified as effective for controlling the spread of a virus, and are a known health hazard (hypoxia!) to the people wearing them! And... you do not mention this fact?
26Can Employer make you work if are in quarantine for a Positive test for covd19 are the sick ones Egible for pay
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