The US Department of Labor and the Occupational Safety and Health Administration (OSHA) have issued new and modified guidance regarding employer record-keeping requirements related to employee cases of COVID-19. The new guidelines, which went into effect on May 26, 2020, replace previous guidance issued by OSHA on April 10 and place increased investigation and recording obligations on employers. The April 10 guidelines were more relaxed than the new guidelines and recognized the difficulty of determining whether COVID-19 cases were “work-related” (i.e., if exposure in the workplace either caused or contributed to the infection).
With COVID-19 now present in nearly all parts of the country and the gradual reopening of workplaces in all states, the new OSHA guidance places increased responsibility on employers to take certain actions to determine whether employee COVID-19 illnesses are work-related and recordable. In determining whether an employer has complied with these obligations and has made a reasonable determination of “work-relatedness,” OSHA will apply the following considerations:
- When an employer learns of an employee’s COVID-19 illness, the employer should (1) ask the employee how the employee believes that she/he contracted the illness, (2) discuss with the employee her/his work and outside-of-work activities that may have led to the illness (while still respecting employee privacy), and (3) review the employee’s work environment for potential exposure to SARS-CoV-2, the virus that causes COVID-19, paying particular attention to whether other workers in the same environment may have contracted COVID-19.
- If an employer is provided with additional information related to an employee’s COVID-19 illness after the initial reporting, that information should be taken into account in determining whether the employer made a reasonable work-relatedness determination.
- Employers should weigh the following factors in favor of a COVID-19 illness being work-related: (1) several cases developing among workers who work closely together and there is no alternative explanation; (2) a COVID-19 illness that is contracted shortly after lengthy, close exposure to a particular co-worker who has a confirmed case of COVID and there is no alternative explanation; and (3) a COVID-19 illness of an employee whose job duties include frequent, close exposure to the public in a location with ongoing community transmission and there is no alternative explanation.
- An employee’s COVID-19 illness is likely NOT work-related if (1) she/he is the only employee to contract COVID-19 in her/his vicinity and her/his job duties do not include frequent contact with the general public, or (2) outside of the workplace, the employee closely and frequently associates with a person who has COVID-19, is not a co-worker, and who was exposed to the employee during the time when the person was likely infectious.
- OSHA will give “due weight” to any other evidence of causation provided by medical personnel, public health authorities, or the employee.
If, after a reasonable and good-faith inquiry that is informed by the factors bulleted above, the employer cannot determine whether it is “more likely than not” that an exposure in the workplace was part of the cause of an employee’s COVID-19 illness, then the employer does not need to record the COVID-19 illness, according to the new and modified guidance.
KEY TAKEAWAYS FROM THE NEW GUIDANCE
Construction professionals should take note of the new, more stringent guidelines and become familiar with the factors that OSHA will apply in determining whether an employer has discharged their investigation duties in good faith. Employers should document their decision-making process when determining whether a case of COVID-19 is work-related and also document the increased sanitation practices and other steps they are taking to prevent the risk of exposure to and the spread of COVID-19 in the workplace and on job sites.
Want to discuss OSHA’s new guidance or discuss whether a reported instance of COVID-19 is work-related and reportable? Contact a member of the Hirschler Team.
As president of Hirschler and head of the firm's litigation section, Courtney knows how to lead people and projects to a successful outcome.
Leveraging deep experience in the construction industry, Courtney advises public and ...
Liz combines enthusiasm and diligence to help her clients resolve complex disputes. Whether the dispute is a construction claim, a breach of contract, or a business tort, Liz brings focus and determination to every case. Liz has ...
Kelly’s practice focuses on construction law, commercial and product liability law, with an emphasis on dispute resolution—including mediation, arbitration, jury and bench trials in state and federal court. She routinely ...
Nate fully engages in each case and shoulders his clients’ needs. Communication, efficiency and careful judgment define his practice. In every case, he investigates competing claims to thoroughly understand their strengths ...
A professional engineer (P.E.) and an experienced lawyer, Webb began practicing at Hirschler Fleischer following four years of work as a consulting engineer. His multidisciplinary practice focuses on general business and ...
SubscribeSubscribe to Hirschler by Email
- Have Force Majeure Defenses Based on COVID-19 Been Successful This Year?
- Kelly Bundy and Liz Burneson Publish Article on Joint Employer Status in Construction Executive
- Kelly Bundy Authors Article for ABA Construction Law Forum’s “Under Construction” Series
- Miller Act Notice More Than 90 Days Before A Subcontractor’s Final Day of Work Held Untimely
- Virginia Supreme Court Allows Sub-Sub Material Supplier To Recover Directly From General Contractor For Unpaid Material
- New Virginia Law Can Make General Contractors Liable for Subcontractors' Employee Wages
- OSHA Changes Course on COVID-19 Record-Keeping Requirements
- New OSHA Guidance Suspends Enforcement of Record-Keeping Requirements for COVID-19 Cases in Most Industries
- What the Virginia Temporary Stay at Home Order Means for Your Business
- Ten Tips For Addressing Coronavirus Concerns In Your Workplace
- COVID-19, Coronavirus Outbreak
- Occupational Safety and Health Act (OSHA)
- Little Miller Act
- Miller Act
- Force Majeure
- Dispute Resolution
- Government Contracts
- Workforce Development
- Mechanic's Liens
- Department of Professional and Occupational Regulation (DPOR)
- Department of Labor (DOL)
- Joint Checks
- Unjust Enrichment
- Virginia Employment Commission (VEC)
- Virginia Workers' Compensation Commission
- Uniform Statewide Building Code
- Change Orders
- October 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- November 2019
- August 2019
- June 2019
- April 2019
- February 2019
- January 2019
- December 2018
- October 2018
- September 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- November 2017
- October 2017
- September 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016