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OSHA Revises Stance on COVID-19 Record-Keeping and Enforcement

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The Occupational Safety and Health Administration (OSHA) recently issued two enforcement memos regarding COVID-19. The first of these memos revised OSHA’s requirements for employers as they determine whether individual cases of COVID-19 are work-related. The second revised OSHA’s policy for handling COVID-19-related complaints, referrals, and severe illness reports. The changes in these revisions include:

Record-Keeping and Reporting

OSHA’s position for months has been that cases of COVID-19 are subject to record-keeping and reporting requirements if they are work-related. On May 26, 2020, OSHA’s new memorandum superseded the previous April 10, 2020 memorandum on the subject of work-relatedness.

The April 10 memorandum essentially provided most employers latitude to assume that cases of COVID-19 were not work-related, absent evidence to the contrary. The May 19 memorandum revises OSHA’s position, requiring employers to investigate COVID-19 cases more heavily before concluding whether they are work-related.

The primary thrust of the agency’s revised position is that OSHA enforcement officers should consider three primary factors when evaluating whether an employer’s determination of work-relatedness was reasonable:

  • The reasonableness of the employer’s investigation into work-relatedness;
  • The evidence available to the employer; and
  • The evidence that a COVID-19 illness was contracted at work.

Regarding the first, OSHA stated that it is sufficient in most circumstances for an employer, when it learns of an employee’s COVID-19 illness, to (1) ask the employee how he or she believes they contracted COVID-19; (2) while respecting employee privacy, discuss with the employee his or her work and out-of-work activities that may have led to the COVID-19 illness, and (3) review the employee’s work environment for potential COVID-19 exposure.

Employee privacy rights are a potential trap for unwary employers when inquiring about exposure outside of the workplace. Such discussions could implicate a variety of employment laws, including state-specific laws.

Regarding the second factor, OSHA directed employers to consider the evidence “reasonably available” at the time they makes their work-relatedness determination. If employers later learn more information related to an employee’s COVID-19 illness, then employers shall also consider that information.

OSHA elaborated on the third factor by listing certain types of evidence that weigh in favor of or against work-relatedness. For example, OSHA stated that COVID-19 illnesses are likely work-related when several cases develop among employees who work closely together and there is no alternative explanation. OSHA also stated that an employee’s COVID-19 illness is likely work-related if it was contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.

OSHA justified its revised position on work-relatedness by stating that the nature of COVID-19 and the ubiquity of community spread frequently make it difficult to accurately determine whether a COVID-19 illness is work-related, especially when employees have experienced potential exposure both in and out of the workplace. OSHA might also have been motivated by some organizations calling for it to take a more aggressive response to COVID-19.

Complaints, Referrals and Illness Reports

The second memo, also issued on May 19, 2020, was related to complaints, referrals, and severe illness reports. Specifically, in geographic areas where community spread of COVID-19 has significantly decreased, OSHA will return to its normal pre-COVID-19 methods for prioritizing reported events for inspections. 

OSHA will continue to prioritize cases of COVID-19 to some degree, but will increasingly conduct these efforts by phone or other remote methods. In geographic areas experiencing either sustained elevated community transmission or a resurgence in community transmission, OSHA will continue to heavily prioritize COVID-19, including conducting on-site inspections, especially in high-risk workplaces.

Action Items and Final Takeaways

OSHA’s enforcement approaches regarding the COVID-19 pandemic continue to evolve. The agency will likely continue to closely monitor employers’ compliance with COVID-19-related requirements even after states and localities lift stay-at-home orders.

Professionals with questions on how OSHA’s recent enforcement policies affect a business or organization should consider consulting with legal counsel. Also, OSHA distributes by email an informative twice-monthly newsletter called “QuickTakes,” open for subscription. OSHA’s regulations on injury and illness recordkeeping and reporting, found at 29 C.F.R. Part 1904, also include helpful questions and answers about these topics.

Finally, employers should bear in mind that the negative consequences of choosing not to comply with OSHA’s record-keeping and reporting requirements often outweigh the potential negative consequences of bringing injuries and illnesses to OSHA’s attention.

Infographic: 16 Blockchain Disruptions

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Underpinning the heart of digital currencies, blockchain has graduated from being merely a buzzword to revolutionizing how companies conduct business. Services and products that are powered by blockchain pose financial and operational risks that can challenge traditional models. With new cryptocurrencies popping up regularly and law firms creating practice groups around it, blockchain is bound to impact your industry.

If you need a quick primer on the topic ahead of the many blockchain education sessions at the RIMS 2019 annual conference, the folks at Bitfortune have created the voluminous infographic below to help you understand how the technology will improve 16 different industries, from music to government.

Explore how blockchain goes beyond Bitcoin and real-world applications that affect you and your organization. Discover ways that blockchain increases transparency and could potentially benefit your organization’s overall resilience.

Visit Bitfortune.net for more information.

Inadequate Emergency System Contributes to Indonesia’s Rising Death Toll Following Earthquake and Tsunami

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The death toll on Indonesia’s island of Sulawesi has risen to 1,200 as of this morning, in the aftermath of a 7.5 magnitude earthquake on Friday and the tsunami that followed. As emergency crews still lead efforts to locate and save victims and clear debris, officials warn that the number of casualties could rise further.

The current warning system is comprised of tidal gauge stations augmented by land-based seismographs, sirens in about 55 locations and a system to disseminate warnings by text message. Time reported that the country had not updated its emergency notification systems (ENS) following the 2004 tsunami that devastated the region, due in part to lack of funding. According to Time:

The high-tech system of seafloor sensors, data-laden sound waves and fiber-optic cable was meant to replace a system set up after an earthquake and tsunami killed nearly 250,000 people in the region in 2004. But inter-agency wrangling and delays in getting just 1 billion rupiah ($69,000) to complete the project mean the system hasn’t moved beyond a prototype developed with $3 million from the U.S. National Science Foundation.

Analysts say that a proper ENS would have provided earlier warnings of the disasters and may have prevented some of the casualties.

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At the time of impact, the country was already dealing with the fallout of major seismic activity in the region. Within the span of about a week in late July and early August, the Indonesian resort island of Lombok was the site of intense earthquakes that killed hundreds, displaced hundreds of thousands and destroyed more than 13,000 houses.

Indonesia is prone to earthquakes because of the country’s location in the “Ring of Fire,” the arc of volcanoes and active fault lines in the Pacific Basin.

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Sutopo Purow Nugroho, a National Disaster Mitigation Agency spokesman, said communications with the earthquake-stricken region were disrupted.

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“Our early estimation, based on experience, is that it caused widespread damage, beginning from Palu northward to Donggala,” he told MetroTV.

It seems as though social media will have to play a more central role in alerting the public of new disasters. This morning, Indonesia’s Meteorological, Climatological and Geophysical Agency (BMKG) tweeted a new alert of a 5.0 magnitude quake near the North Central Timor Regency in East Nusa Tengarra – an Indonesian province – that could potentially lead to a tsunami.