In OSHA interim guidance issued on April 10, OSHA drew a significant distinction between employers of workers in the healthcare industry, emergency response organizations and correctional institutions, and employers in all other industries. Employers in the former sectors were directed to “continue to make work-relatedness determinations pursuant to 29 C.F.R. 1904,” which presumably would lead to large-scale determinations of COVID-19 exposures being work-related, due to the nature of those workplaces. 29 C.F.R. 1904 states that employers must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.

Notably, OSHA also stated on April 10 that it would “not enforce 29 C.F.R. 1904 to require other employers [those outside of the healthcare industry, emergency response organizations and correctional institutions] to make the same work-relatedness determinations” unless there is “objective evidence that a COVID-19 case may be work related,” and “the evidence was reasonably available to the employer.”

Now, however, OSHA has apparently shifted course as of a May 19, 2020 Memorandum for Regional Administrators. In this Memorandum, OSHA has replaced the April 10 Enforcement Guidance with the May 19 Memorandum, with an effective date of May 26, 2020.

Under this most recent OSHA guidance, the April 10 distinction between employers with workers in the healthcare industry, emergency response organizations and correctional institutions, and those employers in all other industries has been removed as it pertains to those employers who must make work-relatedness determinations. Now, all employers must make work-relatedness determinations and determine whether the circumstances of an employee becoming infected with COVID-19 were work-related, and thus recordable.

OSHA, however, continues to recognize that employers will have difficulty in determining work-relatedness, and as a result will exercise its enforcement discretion to assess an employer’s efforts in making work-related determinations. OSHA has thus directed Regional Administrators to consider the following to determine if an employer has complied with the work-relatedness inquiry: (1) the reasonableness of the employer’s investigation into work-relatedness; (2) the evidence available to the employer; and (3) the evidence that a COVID-19 illness was contracted at work.

As to the reasonableness of the investigation, employers are not expected to undertake extensive medical inquiries. It will be sufficient if an employer asks the infected employee how he believes he contracted COVID-19; asks the employee (respecting privacy) about his work and out-of-work activities that may have led to the infection; and reviews the employee’s work environment for potential exposure, including review of other instances of workers in that environment contracting COVID-19.

With respect to the evidence available to the employer, the evidence should be based on what was reasonably available to the employer at the time it made the work-relatedness determination. Evidence obtained at a later date should be taken into account in determining whether the employer made a reasonable work-relatedness determination.

In determining the evidence that a COVID-19 infection was contracted at work, Compliance Safety and Health Officers (“CSHOs”) have been directed to take into account “all reasonably available evidence” to determine whether an employer has complied with its recording obligation, including the following types of evidence:

• Where several cases develop among workers who work closely together and there is no alternative explanation.
• Where an employee contracted COVID-19 shortly after lengthy, close exposure to a customer or co-worker who has a confirmed case of COVID-19 and there is no alternative explanation.
• Where job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
• Where the employee contracting COVID-19 is the only worker to contract COVID-19 in the employee’s vicinity and the job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
• Where the employee, outside the workplace, closely and frequently associates with someone who has COVID-19, is not a co-worker, and exposes the employee during the period in which the individual is likely infectious.
• CSHOs are directed to give due weight to “any evidence of causation, pertaining to the employee illness at issue, provided by medical providers, public health authorities, or the employee…”

According to OSHA, if an employer (after reasonable and good faith inquiries) 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 noted, this directive to Regional Administrators becomes effective on May 26, 2020.

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Because legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.