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OSHA Requires Most Employers to Find if Virus Work-Related (1)

May 19, 2020, 7:47 PMUpdated: May 19, 2020, 10:53 PM

The Occupational Safety and Health Administration has changed its policy for when employers need to record coronavirus cases as being work-related, the agency announced.

Under the new policy, employers who are required to keep OSHA injury and illness logs must determine if workers’ Covid-19 cases are job-related. Previously, OSHA said only health-care employers, corrections facilities, and emergency-response providers were required to make that determination.

The workplace safety agency also announced Tuesday that it would start making more in-person inspections of job sites, such as construction projects and factories, in areas where the spread of the coronavirus had “significantly decreased.”

Generally, OSHA requires all small businesses in hazardous industries and large employers and to keep a log of every worker injury or illness that requires more than first aid for treatment or results in multiple days of missed work.

OSHA acknowledged that determining whether a worker became ill with Covid-19 because of work or other coronavirus exposures may be challenging.

“Given the nature of the disease and community spread, however, in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace,” OSHA said.

OSHA’s memorandum detailing the revised record-keeping requirement said the change was made because “outbreaks among workers in industries other than healthcare, emergency response, or correctional institutions have been identified.”

The agency also cited that confirmed cases of Covid-19 have now been found in nearly all parts of the country, including areas where business are reopening.

“All these facts—incidence, adaptation, and the return of the workforce—indicate that employers should be taking action to determine whether employee Covid-19 illnesses are work-related and thus recordable,” OSHA said.

Listened to Professionals

David Michaels, who oversaw OSHA for most of the Obama administration, welcomed the new policy. “It is a positive development that Secretary Scalia listened to the many safety and health professionals who strongly advised him to roll back the ill-conceived policy,” Michaels said.

“Now I hope Secretary Scalia will listen to the same professionals who are strongly advising him to issue an emergency temporary standard to require employers to actually protect workers from the virus,” Michaels added.

Marc Freedman, vice president for workplace policy at the U.S. Chamber of Commerce, said the change “is appropriate” in responding to a workplace safety problem unlike any other” and shows how “guidance can be updated in ways a standard could not.”

Reversal

The new policy reverses an April 10 announcement that most employers wouldn’t be required to track on-the-job coronavirus cases. The April memorandum overruled an OSHA policy released in March that said employers needed to record virus cases, the same way they are expected to determine if tuberculosis cases are work-related.

The memorandum said only health-care facilities, emergency response providers, and corrections centers would be expected to track work-related coronavirus cases.

Construction contractors, manufacturers, and other employers won’t have to make the determination unless there’s “objective evidence that a Covid-19 case may be work-related” and “the evidence was reasonably available to the employer.”

Inspection Changes

On Tuesday, OSHA also announced that its inspection scheduling process would return to pre-virus outbreak procedures in “geographic areas where community spread of COVID-19 has significantly decreased.”

The memorandum didn’t identify which areas would immediately qualify.

Ed Foulke, an attorney with Fisher and Phillips L.L.P. in Atlanta and OSHA administrator during the George W. Bush administration, said even in areas where virus cases are receding, inspections could still be dominated by virus complaints from workers concerned employers aren’t taking appropriate protective measures.

In April, OSHA said the agency was giving priority to responding to virus-related complaints, primarily at health-care facilities. As a result, construction inspections decreased about 80%, enforcement records showed.

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To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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