Devine Millimet | NH Law Firm

OSHA Issues Additional Guidance and a New Poster

Devin K. Bolger, Esq.
Margaret "Peg" O'Brien, Esq.

April 22, 2020

We recently suggested best practices for ensuring workplace health and safety during the COVID-19 crisis.  (see Lean on Me: From Six Feet Away, Please;  Keep Calm and Wash HandsConsiderations for Employers in Wake of Government Shut-Downs Due to COVID-19).  Briefly put, those practices include designating a safety supervisor, monitoring CDC guidance, establishing a safety plan, educating employees on expectations, enforcing social distancing, strictly following cleaning protocols, establishing exposure protocols, displaying openly workplace safety rules, and encouraging employees to voice safety concerns. 

In its ongoing effort to help employers address safety concerns in the workplace during this pandemic, throughout this month, the Occupational Safety and Health Administration (“OSHA”) has issued several alerts and guidance for employers on safety, with specific guidance for the retail industry, as well as a new poster listing steps all workplaces can take to reduce the risk of exposure to COVID-19.   All links can be found here.  This e-alert addresses the newly released OSHA record-keeping and enforcement guidance. 

Per OSHA’s existing COVID-19 guidance, employers must record any case that:

  1. Is confirmed to be COVID-19 as defined by the CDC;
  2. Is work-related under OSHA regulations; and
  3. Meets one or more recording criteria under OSHA regulations.

A condition is work-related if an event or exposure in the work environment caused or contributed to the condition.  The work environment includes not only the workplace but also any place where employees are present as a condition of their employment, in addition to equipment or tools used for work.  A condition must be recorded if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or diagnosis of a serious injury or illness by a licensed healthcare professional.

Of course, in areas with community-based outbreaks across the country, making a work-relatedness determination is no easy task for an employer.  Recognizing this, OSHA recently issued additional guidance on record-keeping requirements, enforcement discretion, and the enforcement response plan relating to COVID-19.  In this new guidance, OSHA has announced that, until further notice, it will exercise discretion in enforcing record-keeping requirements in areas other than in the healthcare industry, emergency response organizations and correctional institutions.  In all other industries, for the time being, OSHA will not require most employers to make work-relatedness determinations unless:

  1. “There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
  2. The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.”

OSHA hopes that easing enforcement will allow employers to focus on implementing good hygiene practices and other mitigation efforts.  NOTE: As mentioned above, employers in the healthcare industry, emergency response organizations and correctional institutions must adhere to recordkeeping requirements as usual.  

When an employer is required to record a COVID-19 case under the new guidance, it should be entered as a “respiratory illness.”  Employers should also consider the likely privacy issues that will arise by entering an employee’s name in the log.  While OSHA provides exceptions for privacy matters, such as HIV and hepatitis, COVID-19 is not expressly noted.  Thus, employers should ask the employee whether he/she would like his/her name redacted from the OSHA log. If so, the employer should enter “privacy concern case” and should review the record-keeping standard from OSHA provided here on handling privacy matters.

As noted in the newly released guidance, OSHA will also exercise discretion until further notice in areas besides recordkeeping.  COVID-19 has compromised the ability of employers and contractors to provide or facilitate required training, auditing, inspections, testing, and other safety and hygiene services.  Consequently, in investigating OSHA violations, Compliance Safety and Health Officers (“CSHOs”) are directed to evaluate whether employers made “good faith efforts to comply with applicable OSHA standards, and, in situations where compliance was not possible, to ensure that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained.”  In assessing the employer’s good faith efforts, the CSHO should determine whether the employer considered all feasible options to comply with OSHA requirements, and whether the employer implemented any interim, alternative measures to attempt compliance.  Where government-required closures prevent compliance with OSHA requirements, employers should attempt compliance as soon as possible after the re-opening of the workplace. 

Employers should document their good faith efforts to comply with any recurring OSHA requirements, and if necessary, why it was not possible to comply.  OSHA’s enforcement approach is a case-by-case inquiry, and Area Offices will still issue citations in instances where employers do not demonstrate sufficient compliance efforts.

If you have any questions or concerns, please contact one of our team members:
Labor, Employment, and Employee Benefits Team
Workers’ Compensation Team


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