At the beginning at the pandemic, OSHA issued an interim requirement that all COVID-19 cases be logged on an employer’s 300 Log. This requirement was different than the standard for communicable diseases such as Influenza A and B. This was because at the time the requirement was issued, COVID-19 could be tracked to individualized sources. With changes in the pandemic environment and COVID-19 becoming a more social and community-acquired virus, OSHA issued memorandums to assist workforces with safety compliance.
The enforcement guidance issued April 10, 2020, is intended to assist compliance and safety and health officers in addressing the requirements to timely record and report occupational injuries and illnesses (300 Logs). The memorandum took effect immediately and remains in effect until changed by OSHA. It specifically states that COVID-19 is a recordable illness if the case:
- is a confirmed case of COVID-19 (positive test for SARS-CoV 2) as defined by Centers for Disease Control and Prevention
- is work-related - caused, contributed to, or significantly aggravated by work-related conditions
- involves the general recording criteria of 29 CFR 1904.7
The memorandum addresses other COVID-19 issues including high-risk employees. If you are healthcare, emergency response, or correctional institution employer, you are required to continue to make work-related determinations for 300 Log purposes. However, OSHA is not going to enforce these guidelines for other employers except: where there is objective evidence that the case is work-related.
The example used by OSHA is when a number of cases develop among workers who work closely together without an alternative explanation. A reasonable assessment could include a report by the Department of Public Health to the employer of related cases, an employer receiving a number of physician statements regarding COVID-19 for employees who work closely together or a series of positive tests for employees who work closely together.
Guidance issued on April 13, 2020, addresses OSHA’s administrative concerns and how they will deploy personnel to investigate COVID-19 issues. This memorandum indicates that most resources will be focused on high-risk jobs such as those in healthcare, emergency responders, those who work with cadavers or biomedical remains with particular concern and emphasis placed on aerosol-generating procedures such intubation and suctioning of airways.
Medium-risk positions are those with frequent close contact (closer than six feet) with people who could be infected with COVID-19. This includes people who have ongoing contact with the general public such as those who work in high-volume retail settings or those who work in teams and/or share equipment including construction teams on job sites.
Low-risk exposure jobs have limited public contact and allow for social distancing.
Complaints related to COVID-19 issues for OSHA will be handled in a standard manner given the priority needs, with certain high-risk workplaces potentially warranting on-site inspection although most inspections have been curtailed at this time. Absent emergency or extenuating circumstances, on-site inspection will not occur at this time for complaints involving medium to low-risk businesses. OSHA will follow the standard non-formal procedures including contacting by phone to conduct an off-site review.
Employer good faith efforts
On April 16, 2020, OSHA issued a memorandum involving discretion and enforcement if the employer has engaged in good faith efforts to deal with COVID-19. This memorandum takes into consideration potential national shortages of PPE, concerns raised to local authorities, required workplace closures, and similar items allowing OSHA to assess an employer’s good faith efforts to comply with a myriad of regulations.
However, in order to utilize the discretion outlined in this memorandum, employers must document and be able to show good faith efforts of compliance including keeping appropriate logs and documentation regarding any supply chain or similar issues.
Employers with concerns about whether OSHA’s new policies apply to them and what documentation they need to keep should contact an attorney for fact-specific advice.
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