COVID-19: OSHA Updates Two Key Enforcement Guidance Documents

Published date05 June 2020
AuthorMs Peggy Otum, Bonnie Heiple, Andrew Stauber and Benjamin Hanna
Subject MatterEmployment and HR, Coronavirus (COVID-19), Health & Safety, Employment and Workforce Wellbeing, Operational Impacts and Strategy
Law FirmWilmerHale

I. Introduction

In recent weeks, many businesses have resumed or expanded operations to varying degrees as states and local jurisdictions have issued reopening orders. That means many "non-essential" employees have been or soon will be returning to workplaces across the country, joining the employees of critical infrastructure or "essential" businesses who have continued working throughout the pandemic. Recognizing the growing number of employees returning to work, the Occupational Safety and Health Administration (OSHA) on May 19, 2020, issued updates to two COVID-19 guidance documents addressing the Agency's enforcement discretion and priorities. The first revised guidance document, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), updates OSHA guidance issued in April and provides more detail on employers' recording obligations related to COVID-19 cases. The second updated guidance document, Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), relates to OSHA's handling of COVID-19-related complaints, referrals, investigations and inspections. Both updates-which will take effect on May 26th and supersede their respective predecessor documents-contain valuable information for employers.

II. Revised Enforcement Guidance for COVID-19 Recording Obligations

Unlike the flu, COVID-19 is a recordable illness under OSHA's recordkeeping requirements1 when certain criteria are met, including when the illness is work-related (the case must also be a confirmed case as defined by the Centers for Disease Control (CDC) and involve one or more factors set forth in 29 CFR 1904.7; the criteria that trigger reporting obligations are discussed in a WilmerHale client alert available here).

a. Initial Enforcement Guidance on COVID-19 Recording Obligations

In early April, in one of the first COVID-19 guidance documents it issued during the pandemic, OSHA announced it would exercise discretion in determining whether to enforce its illness and injury recording requirements. Pursuant to that initial enforcement guidance (which remains effective until May 26th), for industries other than healthcare, emergency response, and correctional institutions, a COVID-19 case is potentially reportable only if there is objective evidence that is reasonably available to the employer that the case is work-related. Other than providing a few broad-stroke examples of objective and "reasonably available" evidence, however, that...

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