OSHA Revises Pandemic-Related Enforcement Policies

Coronavirus

On May 19, OSHA adopted revised policies for enforcing its requirements with respect to the coronavirus in response to the transition that states are making to reopen throughout the country.

“Throughout the course of the pandemic, understanding about the transmission and prevention of infection has improved,” stated OSHA in a press release. “The government and the private sector have taken rapid and evolving measures to slow the virus’s spread, protect employees, and adapt to new ways of doing business.”

As a result, OSHA has issued two revised enforcement policies to ensure employers are taking action to protect their employees.

First, OSHA is in the process of increasing in-person inspections “at all types of workplaces.” The new enforcement guidance reflects changing circumstances in which many noncritical businesses have begun to reopen in areas of lower community spread.

“The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available,” said OSHA. OSHA staff will continue to prioritize COVID-19 inspections and plans to utilize all enforcement tools as it has historically done.

Second, OSHA is revising its previous enforcement policy for recording cases of coronavirus. Under its recordkeeping requirements, coronavirus is a recordable illness, and employers are responsible for recording cases of the coronavirus if the case meets the following criteria:

  • is confirmed as a coronavirus illness
  • is work-related as defined by 29 CFR 1904.5
  • involves one or more of the general recording criteria in 29 CFR 1905.7, such as medical treatment beyond first aid or days away from work

“Under the new policy issued today, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee coronavirus illnesses for all employers,” OSHA stated.

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 in and out of the workplace. As such, OSHA’s guidance emphasizes that employers must make “reasonable efforts,” based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.

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