U.S. Department of Labor Issues Alert on Social Distancing To Keep Employees Safe at Work During the Coronavirus Pandemic
On May 2, 2020,the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an alert listing steps employers can follow to implement social distancing in the workplace and to help protect workers from exposure to the coronavirus.
OSHA’S Alert states that the safety measures employers can implement include:
- Isolate any worker who begins to exhibit symptoms until they can either go home or leave to seek medical care;
- Establish flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), if feasible;
- Stagger breaks and re-arrange seating in common break areas to maintain physical distance between workers;
- In workplaces where customers are present, mark six-foot distances with floor tape in areas where lines form, use drive-through windows or curbside pickup, and limit the number of customers allowed at one time;
- Move or reposition workstations to create more distance, and install plexiglass partitions; and
- Encourage workers to bring any safety and health concerns to the employer’s attention.
COVID-19 Recordkeeping Requirements for Employers
Many employers have questioned whether it is an OSHA reportable event when an employee tests positive for COVID-19. The answer is: it depends on several factors.
On May 19, 2020, OSHA published revised enforcement guidance detailing when employers must record COVID-19 illnesses. The new guidance is effective as of May 26, 2020 and will remain in effect until further notice.
Under the guidance, instances of COVID-19 will continue to be recordable if all of the following are met:
1) The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
2) The case is work-related; and
3) The case involves one or more of the general recording criteria set forth in the federal regulations (e.g., medical treatment beyond first aid, days away from work).
The guidance provides additional information for employers on how to determine if COVID-19 is “work-related.” Employers must undertake a reasonable fact-based determination of whether a COVID-19 illness is work-related.
The guidance acknowledges that, due to community spread, there is an inherent amount of uncertainty in determining whether the illness is work-related. As such, OSHA will exercise its enforcement discretion in reviewing employers’ work-related determinations. In considering whether the employer has made a reasonable fact-based inquiry, OSHA will consider multiple factors, including:
1. The reasonableness of the employer’s investigation into the work-relatedness –Employers should generally:
(a) ask the employee how they believe they contracted COVID-19,
(b) discuss with the employee the out-of-work activities in which they have participated that may have led to the illness, and
(c) review the employees work environment for potential coronavirus exposure, e.g., determine whether multiple employees in the workplace have tested positive.
2. The evidence available to the employer– The determination as to whether the work-related nature of the illness, based on all the information reasonably available to the employer and additional information the employer learns in the future, should also be documented as it will be considered by OSHA.
3. Relevant Factors– The factors that would suggest a causal connection that the illness is work-related, in the absence of an alternative explanation, include:
(a) evidence that shows multiple workers contracted the illness while working in close proximity,
(b) evidence that shows an employee contracted COVID-19 shortly after exposure to an employee (or customer) with a confirmed case of COVID-19, and
(c) evidence that shows an employee frequently works with the public in an area with ongoing community spread.
Factors supporting a conclusion that the illness is not work-related include:
(a) if an employee is the only worker to contract COVID-19 and his or her job duties do not include contact with the public, and
(b) if an employee has contact with, outside of the workplace, persons that are not co-workers who have COVID-19 and could have exposed the employee to the illness.
After considering the relevant factors, if the employer cannot determine that it is more likely than not that the workplace caused the employee’s case of COVID-19, then it need not record the illness. OSHA will have the authority to review the employer’s decision and employers should point to the factors that they considered in making their work-relatedness determination, which should be reflected in the documentation maintained by the employer.
If the illness must be recorded, employers can ask the employee if they want their names redacted from the OSHA 300 log for privacy reasons.
OSHA has also published Guidance on Preparing Workplaces for COVID-19, a document aimed at helping workers and employers learn about ways to protect themselves and their workplaces during the ongoing pandemic. OSHA’s website and publications should be reviewed frequently during the pandemic to keep updated on any recent developments as to an employer’s obligations in providing a safe and healthy workplace for its employees.