What Employers Need to Know About OSHA and COVID-19

The Occupational Safety and Health Administration (OSHA) has issued interim guidance for enforcing its recordkeeping requirements in recording COVID-19 cases, among other guidelines and policies. Here’s a look at OSHA and COVID-19 compliance for employers.

OSHA Recordkeeping Requirements and COVID-19

OSHA’s recordkeeping requirements state that COVID-19 is a recordable illness if the following apply:

1. the illness is confirmed as a COVID-19 illness;
2. the illness is work-related; and
3. the illness Involves one or more of the general recording criteria, such as medical treatment beyond first aid or days away from work.

In areas where there is ongoing community transmission, employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions may have difficulty deciding whether the employee’s COVID-19 illness is work related (i.e., they contracted COVID-19 through exposures at work). Accordingly, until further notice, OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except as follows:

• There is objective evidence that a COVID-19 case may be work-related; and
• The evidence was reasonably available to the employer. Employers of workers in the healthcare industry, emergency response organizations, and correctional institutions must continue to make work-relatedness determinations.

OSHA’s enforcement policy will provide certainty to the regulated community and help employers focus their response efforts on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects.

Read the interim guidance and more on OSHA’s COVID-19 webpage.

OSHA Reminder that Retaliation for Reporting Unsafe Conditions Prohibited

OSHA also released a reminder to employers that it is illegal to retaliate against workers when they report unsafe and unhealthful working conditions, including during the COVID-19 pandemic. Retaliation may include termination, demotion, denial of overtime or promotion, or reduction in pay or hours.

Under the Occupational Safety and Health Act (OSHA), employees have the right to safe and healthy workplaces, and any worker who believes that their employer is retaliating against them for reporting unsafe working conditions is instructed to immediately contact OSHA.

Workers may contact OSHA or may file an online whistleblower complaint if they believe their employer has retaliated against them for exercising their rights under the whistleblower protection laws. The OSHA Whistleblower Protection Program provides resources about worker rights and includes fact sheets on whistleblower protections for employees in various industries along with frequently asked questions.

OSHA to Exercise Discretion in Enforcement for Employer’s Good Faith Efforts During COVID-19

OSHA also released interim guidance for compliance safety and health officers when evaluating an employer’s good faith efforts to comply with safety and health standards during the COVID-19 pandemic. The interim guidance is time-limited and in effect only during the current public health crisis.

According to the guidance, current infection control practices may limit the availability of employees, consultants, or contractors who normally provide OSHA training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services. Business closures and other restrictions may also preclude employee participation in training if trainers are unavailable, and access to medical testing facilities may be limited or suspended. Therefore, during an inspection, compliance safety and health officers are directed to assess an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training, or assessments. For instance, officers are directed to evaluate whether the employer did any of the following:

• Explored all options to comply with applicable standards (use of virtual training or remote communication strategies);
• Implemented interim alternative protections, such as engineering or administrative controls; and
• Rescheduled required annual activity as soon as possible.

Employers unable to comply with OSHA requirements because local authorities required their workplace to close should demonstrate a good faith attempt to meet applicable requirements as soon as possible following the workplace’s re-opening. Additionally, OSHA will strongly consider an employer’s good faith compliance attempts when determining whether to cite a violation. However, OSHA may issue a citation if it finds an employer cannot demonstrate any efforts to comply. OSHA is also developing a program to conduct monitoring inspections from a randomized sampling of cases where the agency noted but did not cite violations. This is to ensure employers have taken corrective actions once normal activities resume.

The guidance took effect on April 16, 2020, and is in effect until further notice.

Get more information about COVID-19 payroll and HR issues in our Resource Center.