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Re-opening? Helpful OSHA Info!

As many “non-essential” businesses are reopening and essential businesses are increasing their headcounts, employees are returning to work.  Employers are faced with a number of new challenges and evolving guidelines of which to be aware!  This Brief will address just one of those areas that have been deemed its own “hot spot” if you will, in litigation nightmares for employers.  That area is OSHA/Workers’ Comp.  Employers with ten (10) or fewer employees last year and the current year, or those in certain industries of minimal hazard have no recording requirements, unless you have a work-related fatality–even a COVID-19 fatality contracted in the workplace, must be reported by all employers.

If mishandled, this area can result in significant impact to the Company; such as:  surprise OSHA inspections, charges filed from disgruntled employees that you don’t have time or resources to deal with, penalties and fines levied in some cases, ammunition for “third-party” campaigns, not to mention public notice of any determinations made (OSHA).  I could go on…

RE:  Confirmed COVID-19 Illness Contracted at Work IS a RECORDABLE Event!

On May 19, 2020, the Dept. of Labor issued a News Release #20-1054-NAT, informing us that OSHA had revised two policies in an effort to make certain that employers were following the guidelines to keep their employees safe.
1.  Onsite inspections are increasing!  This revision will apply to “all types of workplaces” and will be determined based on the location of the business and the level of infection rate/spread of the virus.
2.  Revision has been made so that employers must include COVID-19 as a recordable illness, if certain criteria is met.

  • The illness is confirmed.  Require documentation from the employee’s health provider.
  • The illness is work-related.  Meets the definition found here.  There are limited inquiries you can make.
  • The incident meets the criteria for recording found here.   For example, did the employee miss work?

So, are you asking the same question I did?  “How could you ever be certain that the employee was not exposed by a sick family member or an asymptomatic friend first rather than by the coworker in the workplace who works in another department and tested positive?”  Hmmm…  I guess only OSHA will answer that question for us; however, they have published relevant guidelines that employers should make every effort to adhere to that will assist inspectors in making their determination as to the recordability of a COVID-19 illness on your OSHA 300 Log.

There are some definite guidelines, however, that can offer direction and to an extent, protection to employers.  Some of those guidelines include:  being “reasonable” in your fact-gathering related to the illness; and the Memorandum specifically states, “especially small employers”, consideration of the facts available, specific evidence that lends itself to contracting the illness at work and there is a helpful list  in guiding you.  After the employer has conducted a “reasonable and good faith” effort to gather the facts, if the information doesn’t lead one to determine that most likely the illness was indeed contracted in the workplace, then the employer doesn’t have to record the illness.  The Memorandum also says that Safety & Health Officials need to consider the employer’s efforts in light of the new guidelines when deciding their level of compliance.

So, my gleanings based on the reading of the many newsletters I receive, agency sites I stalk, and attorney firms I follow, there are some strongly recommended practices and procedures every employer is advised to adopt, aside from adhering to the new guidance and being sure work-related COVID-19 cases are recorded.  These practices and procedures are recommended for the safety of employees and for the employers’ safety, as well.  CDC’s site has many resources for businesses.

1. Check temperatures daily at the door.  Employees from production floor to C-Suite, and visitors and vendors.  Be sure to write a policy statement as to how these checks are conducted, who must participate, and who is responsible for the check, how the results are logged and where.
2. Complete brief Symptom Questionnaire.  Have everyone complete a questionnaire that list the symptoms of COVID-19.  You can find those here.  Be sure to write a policy statement as to how you do this, to whom it applies, and who is responsible for collecting them and where you keep them.
3. Maintain an ample supply of PPE and approved cleaning supplies.  Have supervision staff hold accountable all employees for wearing PPE and cleaning their work areas as instructed.  Be sure to write a policy statement regarding these requirements and who must adhere to them and who oversees them being carried out.
4. Require sick employees to go home.  And require a Fit-for-Duty release from the employee’s physician to return to work.  And…you know…be sure to write a policy statement regarding the company-wide requirement.
5.  Training employees.  Employers can train their employees in the key facts regarding the virus, its spread, PPE, the Company’s efforts to keep them safe, how to clean their work areas, reporting their own symptoms or someone else’s, etc.  And…finally, be sure to include this in your COVID-19 policy statement along with a copy of the actual training and the test the employees must take and pass afterwards.

These are some recommendations for employers.  These were important in the beginning of the spread, and they will continue to be important as we move forward unsure of what to anticipate in the coming months.  The redundancy of mentioning a policy statement is intentional.  It is believed that it will go a long way with OSHA, should there the employer be charged with neglect to keep safe (under the general duty clause, for example).  If that employer has taken every precaution, followed the guidelines, and made every effort to educate their management staff, as well as other employees, these efforts will speak volumes as to the care, concern, and at what level of seriousness the requirement is viewed.  Documentation is key!  Having employees sign-off on anything and everything when possible is not over-kill!  It can only add credibility to your case.

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