OSHA Virus Guidance Raises Employer, Worker Advocate Concerns

New OSHA guidance that most employers won’t have to determine whether a worker’s coronavirus infection was job-related is raising concerns among worker advocates and employers and discussions of possible court challenges.

They said the April 10 memorandum essentially changed OSHA’s requirements on when illnesses must be recorded in federally mandated logs, limiting it to only certain employers.

“Now, as this crisis is escalating, the Trump administration has rolled back protections telling employers that they don’t have to determine if Covid-19 infections are due to exposures at work, which will lead to more workers becoming infected and dying,” said AFL-CIO health and safety director Rebecca Reindel.

“The presumption should be that the condition is work-related,” Reindel added. “Work is where people’s greatest potential to exposures to the virus are right now.”

The guidance could be subject to a court review to determine if the revisions should have gone through public review before taking effect, a former senior Department of Labor attorney said.

A 2016 appeals court decision overturning OSHA guidance for chemical safety could open the door for challenges to the coronavirus guidance, said Ann Rosenthal, who retired in 2018 as the Department of Labor’s associate solicitor for occupational safety and health.

In that case, Agriculture Retailers Association v. DOL, the U.S. Court of Appeals for the District of Columbia Circuit ruled OSHA’s fertilizer guidance was in essence a rulemaking and should have gone through a formal and public rulemaking process.

Rosenthal, who disagrees with the coronavirus guidance, cautioned that a court challenge wouldn’t be a quick fix. “It would take too long to be effective as a legal case, but it would encourage the DOL to do the right thing,” she said.

The April 10 OSHA guidance said that in most circumstances, only employers in the health-care industry, emergency response organizations such as police and fire departments, and correctional institutions will have to make a determination on whether workers were stricken with Covid-19 while on the job.

Employers in other industries wouldn’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.”

The guidance said objective evidence could include “a number of cases developing among workers who work closely together without an alternative explanation.”

Employer Concerns

The OSHA guidance also left industry-side attorneys with concerns.

William Principe, a partner at Constangy, Brooks, Smith & Prophete LLP in Atlanta, said “objective evidence” is a troublesome term because it doesn’t appear in other OSHA guidance and could be open to court interpretations.

Principe said OSHA might have made a better choice by using its existing rule for recording tuberculosis cases (29 C.F.R. 1904.11).

That rule said a TB case isn’t considered work-related if the employee is living in a household with a person who has been diagnosed with active TB; a public health department has identified the worker as a contact of an individual with a case of active TB unrelated to the workplace; or a medical investigation shows that the employee’s infection was caused by exposure to TB away from work, or proves that the case was not related to the workplace TB exposure.”

Tressi Cordaro, a principal at Jackson Lewis PC in Washington, said OSHA should clarify when coronavirus cases need to be reported to OSHA under that agency requirement that OSHA needs to be notified within 24 hours of a worker’s hospitalization and eight hours for a death.