On April 16th, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued guidance to compliance safety and health officers tasked with evaluating an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training or assessments during COVID-19.  Specifically, officers should evaluate if the employer:

  • Explored all options to comply with applicable OSHA standards (e.g., use of virtual training or remote communication strategies);
  • Implemented interim alternative protections, such as engineering or administrative controls; and
  • Rescheduled required annual activity as soon as possible.

The guidance advises compliance health and safety officers to consider employers’ good faith efforts to comply during this pandemic. Specifically, Employers unable to comply with OSHA requirements because local authorities required the workplace to close should demonstrate a good faith attempt to meet applicable requirements as soon as possible upon re-opening.

OSHA will take employers’ attempts to comply in good faith into strong consideration when determining whether to issue a citation.  It may issue a citation if an employer cannot demonstrate any efforts to comply with applicable requirements.  Once normal activities resume, the agency will conduct inspections from a random sampling of cases where it noted, but did not cite, violations to ensure employers take corrective actions.

On April 13th, the agency issued guidance for enforcing its recordkeeping requirements as they relate to recording cases of COVID-19.  Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19 in cases where the illness:

  • is confirmed as COVID-19;
  • is work-related (work-relatedness is presumed for illnesses resulting from exposures occurring in the work environment); and
  • involves one or more of OSHA’s general recording criteria, such as medical treatment beyond first aid or days away from work.

The guidance recognizes that most employers will likely have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.  As such, OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where:

  • there is objective evidence that a COVID-19 case may be work-related; and
  • the evidence was reasonably available to the employer.

However, employers in the healthcare industry, emergency response organizations and correctional institutions must continue to make work-relatedness determinations as required by OSHA for all recordable injuries and illnesses.

Please contact us if you have questions or concerns.

Ann K. Sullivan, Esq. (asullivan@asksullivan.com)

Deborah Y. Collins, Esq. (dcollins@asksullivan.com)

Sybil L. Spurgeon, Esq. (sspurgeon@asksullivan.com)

Melissa Morris Picco, Esq. (mpicco@asksullivan.com)

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