In follow up to National Lumber and Building Material Dealers Association’s report last week, the Occupational Safety and Health Administration (OSHA) has revised its previous enforcement policy for recording cases of COVID-19. In an email to members, NLBMDA stated that the new enforcement guidance went into effect as of Tuesday. All information pertaining to OSHA’s new enforcement policy with respect to COVID-19 can be found in an enforcement memo here.
All employers who are currently subject to OSHA’s existing record-keeping requirements, which includes building material and supply dealers, must now record a case of COVID-19 as job-related if the case:
- Is confirmed as a COVID-19 illness (positive test);
- Is work-related as defined by 29 CFR 1904.5; and
- Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.
Employers with fewer than 10 employees are exempt from OSHA’s record-keeping requirements.
Given the nature of the disease and ubiquity of community spread, in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace. In light of these considerations, OSHA is exercising enforcement discretion to assess employers’ efforts in making work-related determinations.
In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, Compliance Safety and Health Officers (CSHOs) will apply the following considerations:
- The reasonableness of the employer’s investigation into work-relatedness.
- The evidence available to the employer.
- The evidence that a COVID-19 illness was contracted at work.
If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.
As a reminder, all employers must report the following to OSHA:
- Any employee fatality as a result of a work-related incident (within 8 hours)
- Any in-patient hospitalization of one or more employees as a result of a work-related incident (within 24 hours).
- Any employee amputation as a result of a work-related incident (within 24 hours).
- Any employee loss of an eye as a result of a work-related incident (within 24 hours).
Detailed guidance pertaining to OSHA’s existing Injury and Illness Record-keeping Rule can be found here.