The Latest on OSHA Compliance

The Latest on OSHA Compliance



By Donald Dunphy
June 2020



Organizations continue to navigate the impact of the coronavirus, making decisions real-time, often without any prior experience or protocols. As eager as the country is to reopen and get back to work, literally, the vagaries of this particular virus make long-term decision making are a challenge.  As states reopen, they also risk closing down again depending on how the public adheres to risk mitigating behaviors.
On June 11, Treasury Secretary Steven Mnuchin said in an interview with CNBC that shutting down the economy for a second time to combat the spread of Covid-19 isn’t a viable option. Balancing economic imperatives with health and safety considerations is more than a juggling act. Enter the Occupational Safety and Health Administration (OSHA). Organizations are required to be within compliance in case reporting. OSHA’s Total Case Incident Rate (TCIR) is defined as the number of work-related injuries per 100 full-time workers during a one-year period. Depending upon the industry the company operates within, the OSHA recordable rate can directly impact a company’s ability to bid and be awarded work, so it is crucial that organizations now factor in any COVID-19-related cases.

On May 19, OSHA issued a press release that the agency has revised its enforcement policy for recordable cases of Covid-19, adding that the agency will also increase workplace inspections.

The new enforcement policy overrides an April 10 guidance memo that required only employers in the healthcare industry, emergency response organizations and correctional institutions to make work-related determinations of Covid-19 cases.  At that time, all other employers were exempt (except in cases in which “objective evidence” existed that a Covid-19 infection was work-related, or the evidence was “reasonably available” to the employer).

Now, according to the new enforcement policy, OSHA states that Covid-19 cases are recordable if:

  • The illness is confirmed as Covid-19.

  • The illness is work-related as defined by the existing work-relatedness determination criteria.

  • The case meets the general recording criteria (meaning the case involved days away from work, medical treatment beyond first aid, and restricted work or transfer to another job).

 
OSHA states that this is complicated “given the nature of the disease and community spread, however, in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” OSHA’s guidance emphasizes that employers must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related. 

OSHA will base compliance determinations on these considerations:

  • The reasonableness of the employer’s investigation into whether the Covid-19 case was work-related.

  • The evidence available to the employer.

  • The evidence that Covid-19 was contracted at work.

    • Covid-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.

    • An employee's COVID-19 illness is likely work-related if it is 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.

    • An employee's Covid-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

  • The last consideration, “if, after the reasonable and good-faith inquiry described above, the employer 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” (the agency will provide scenarios of ‘certain types of evidence’ to determine whether Covid-19 cases are likely work-related). 

 
Lastly, per OSHA, the decision to increase the number of inspections is a result of “changing circumstances in which many noncritical businesses have begun to reopen in areas of lower community spread” and OSHA staff will prioritize Covid-19 inspections.

For further information regarding OSHA’s Covid-19 response, visit www.osha.gov/SLTC/covid-19/

Note: Special thanks to NAFA Member Larissa Clinard, CAFM, Fleet Manager for J.F. Ahern Co., and Dustin Rusch, Chief Safety Officer, J.F. Ahern Co., for details.