OSHA Reverses Course and Now Requires Employers to Track COVID-19 Cases

The U.S. Occupational Safety and Health Administration this week announced a significant reversal of previous policy on an employer's obligation to record work-related cases of COVID-19 on OSHA injury and illness logs. The new requirements go into effect Tuesday, May 26. As with the previous guidance, OSHA acknowledged that it will be difficult to establish that a particular COVID-19 case is "work-related." But the new guidance does place additional obligations on most employers to conduct an investigation and to make a reasonable determination as to whether the illness was transmitted on the job. It should be noted that the new guidance applies only to employers currently subject to OSHA's recordkeeping requirements. Due to employee size limitations, many home builders are exempt from most of the new requirements. Employers who are subject to OSHA's recordkeeping requirements must record a case of COVID-19 as job-related if:

1. It is a confirmed case of the virus (a positive test),
2. It is "work-related" in that an event or exposure in the work environment either contributed to or caused an employee to contract the virus, and
3. It results in death, days away from work, restricted work or transfer, or medical treatment beyond first aid.

Employers who have no recordkeeping obligations need only report work-related COVID-19 illnesses resulting in an employee's death or in-patient hospitalization, amputation, or loss of an eye. But those employers must still investigate positive tests to determine if the case is work-related. OSHA will consider the "reasonableness" of an employer's investigation when determining compliance. The new guidance concedes that employers are not expected to undertake extensive medical inquiries, given privacy concerns and most employers' lack of medical expertise. However, in most circumstances, employers should complete the following steps when they learn of a COVID-19 case:

• Ask the employee how they believe they contracted the illness.
• Discuss with the employee, while respecting privacy concerns, the activities both inside and outside of work that may have led to the illness.
• Review the employee's work environment for potential COVID-19 exposure.

OSHA recognizes that determining the work-relatedness of a COVID-19 diagnosis is difficult for most employers, and noted that it would consider certain types of evidence that weigh in favor or against work-relatedness. For example, it is likely the virus was contracted at work if several cases develop among workers who work closely together and there is no alternative explanation. Conversely, if only one worker at a site tests positive, it is likely not work-related. NAHB recognizes that members will have many questions about the new guidance. Staff is carefully reviewing the new guidance and intends to work with OSHA on implementation. Any questions may be directed to Rob Matuga or Felicia Watson.