While some federal, state and local governments are changing enforcement priorities to lessen the enforcement burden on employers during the Coronavirus pandemic, the Occupational Safety and Health Administration’s (OSHA) regulations remain in full force.
The agency recently released an updated version of its guidance on protecting workplaces, called Preparing Workplaces for COVID-19. Developed in conjunction with the U.S. Department of Health & Human Services (HHS), it contains recommendations regarding safe work practices and personal protective equipment based on different levels of exposure and other risk factors.
The guidance identifies a range of levels of risk exposure, from Very High—for those employees with a high potential for exposure, such as doctors or healthcare personnel who have direct contact with COVID-19 patients—to Lower Exposure Risk—workplaces which do not involve frequent contact with the public or COVID-19 patients.
For each level of risk exposure, the guidance details the steps it recommends that employers can implement to best manage the risk of exposure.
Although the guidance does not create new legal obligations for employers, all of the old ones remain in place. The unique circumstances that have been created by our new world of work inevitably raise questions about how OSHA regulations will be enforced in the future for actions taken by employers today.
Take, for example, the issue of how OSHA will choose to enforce citation settlement agreements that contain “enhanced abatelements.” An enhanced abatement is created when an employer agrees to perform certain abatement actions beyond the recognized hazard in the specifically cited standard.
For example, if an employer receives a machine guarding citation for failure to guard a particular machine, OSHA may request the employer perform a corporate-wide guarding audit for all equipment in addition to guarding that machine, says John S. Ho, an attorney with the law firm of Cozen O’Connor.
Other common examples of enhanced abatement include committing to performing future employee training at all facilities in applicable areas or agreeing to conduct safety and health audits with OSHA’s consultation branch or an independent safety and health firm.
Given the current uncertainty of how COVID-19 will affect the workforce, Ho urges employers to give special consideration before agreeing to any enhanced abatements that require actions taken in the future. “Using the example of providing future employee training above, if COVID-19 results in extended and prolonged employee absences, it could affect the employer’s ability to conduct such training,” he says.
He adds that it may be prudent to negotiate with OSHA an “emergency” type clause to take this potential into account and automatically extend abatement deadlines under certain conditions. “Of course, the need for such a clause and the necessary language will depend on the specifically enhanced abatement requested.”
What Must You Report?
One area of potential concern for employers are the agency’s injury and illness reporting standards. Keep in mind that while the “common cold and flu” are exempt from these recording requirements and do not have to be recorded on an employer’s OSHA 300 log, circumstances have changed how OSHA views COVID-19.
OSHA all along has excepted certain other illnesses from its cold and flu reporting exemption. These include “tuberculosis, brucellosis, hepatitis A, or plague,” which must be recorded as work-related if the employee is infected at work, note attorneys with the law firm of Ice Miller LLP.
In this regard, OSHA has taken the position that COVID-19 should be treated, for recording purposes, like these other illnesses and not like the common cold or flu. OSHA states its position on recordkeeping in a section of its website called, “OSHA Injury and Illness Recordkeeping and Reporting Requirements.”
The inevitable question arises: How do you handle a case if it is not obvious whether the precipitating event or exposure occurred in the work environment or away from work? It is pretty clear that in many work settings this may be difficult, if not impossible, to determine.
When the question arises, the Ice Miller attorneys say an employer must evaluate the employee’s work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.
According to an OSHA standard interpretation letter from 2016 on an unrelated topic, the employer’s duty in such situations is as follows: “The employer has the ultimate responsibility for making good-faith recordkeeping determinations regarding an injury and/or illness. Employers must decide if and how a particular case should be recorded and their decision must not be an arbitrary one.”
The Ice Miller attorneys observe, “For now, that is probably the clearest guidance we will have on the subject.”
How do you make the determination for employees who were traveling when they became ill with the Coronavirus? OSHA’s standards say injuries and illnesses that occur while an employee is on travel status are work-related if, at the time of the injury or illness, the employee was engaged in work activities “in the interest of the employer.”
Examples of such activities include travel to and from customer contacts, conducting job tasks, and entertaining or being entertained to transact, discuss or promote business (work-related entertainment includes only entertainment activities being engaged in at the direction of the employer).
However, recording exceptions occur for travelers whose illness or injury occurs when the employee has “checked into a hotel or motel for one or more days,” which effectively becomes their residence, or when the employee has taken a side trip for personal reasons. “Again, it will be difficult to determine whether such an exception would apply,” the attorneys admit.
A question that has gained greater currency since businesses have been shut down and people are ordered to shelter in place, is recording injuries and illnesses that occur while an employee is working at home, including work in a home office.
OSHA holds that an injury or illness will be considered work-related if it occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting, the Ice Miller attorneys point out.
Circumstances vary, they say. For example, if an employee drops a box of work documents and injures his or her foot, the case is considered work-related. If an employee’s fingernail is punctured by a needle from a sewing machine used to perform garment work at home, becomes infected and requires medical treatment, the injury is considered work-related.
However, if the employee is injured because he or she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related. If an employee working at home is electrocuted because of faulty home wiring, the injury is not considered work-related.
“Unless the illness resulted from some exposure by a work-related vector, such as contaminated work documents or materials, as opposed to exposure to an ill family member, it would not be recordable,” the attorneys explain.
“Again, in all of these circumstances, determining when and where the employee contracted the illness may be difficult, but it is a determination the employer must consider when an employee is diagnosed with COVID-19.”