OSHA Recommends Measures to Reduce Workplace Spread of COVID-19

Responding to a directive from the Biden administration, OSHA posted new guidance on January 29, 2021 to help non-healthcare employers identify COVID-19 risks and implement effective measures to minimize its spread in the workplace. The guidance is not a standard or regulation, and it creates no new legal obligations. It is advisory in nature, containing recommendations and detailed descriptions of existing safety and health regulations. However, it will likely be one yardstick used to measure compliance with OSHA’s “General Duty Clause,” which requires employers to provide workers with a workplace free from recognized hazards that cause or are likely to cause death or serious harm.

The new guidance specifies that implementing a workplace COVID-19 prevention program is the most effective way to reduce its spread at work. An effective program includes such elements as:

  • Assigning a workplace coordinator responsible for COVID-19 issues.
  • Identifying where and how employees might be exposed at work.
  • Identifying a combination of measures to limit the spread of COVID-19 at work including separating and sending home potentially infected employees, implementing physical distancing and barriers, requiring face coverings, improving ventilation, and using applicable PPE, as well as good hygiene and cleaning/disinfection practices.
  • Providing reasonable accommodations or modifications to workers at higher risk of severe illness.
  • Effectively communicating with employees about COVID-19 in a language they understand and providing them with guidance on screening and testing.
  • Educating and training employees on COVID-19 policies and procedures.
  • Minimizing the negative impact of quarantine and isolation on workers by allowing telework or work at alternative locations where possible.
  • Recording and reporting COVID-19 infections and deaths consistent with applicable OSHA requirements. See Lake Effect’s blogs on this issue.
  • Establishing a process for employees to anonymously express concerns about COVID-19 hazards and ensuring that they are not discriminated or retaliated against in any way.
  • Making COVID-19 vaccines available to employees and requiring all employees to follow preventive practices, regardless of whether they are vaccinated.  See Lake Effect’s blog on this issue.

This is not an exhaustive list of OSHA’s new recommendations, and this new guidance contains detailed information about each aspect of an effective workplace COVID-19 prevention program. Employers should work closely with legal counsel to understand all requirements and implement a COVID-19 workplace prevention program consistent with this new OSHA guidance. Lake Effect is here to help you through this process and ensure that you are taking all possible steps to provide a workplace free from the recognized hazards created by the COVID-19.

Biden Administration Impact on the Workplace

Just one week into his administration, President Biden has signaled that he will take a fresh look at current issues affecting American workers and workplaces. His recent executive orders and memoranda include the following actions:

  • Halt Final Rules governing tip pools and independent contractors: This Executive memorandum stays pending final rules that have been published but which had not yet taken effect to allow the Biden Administration to review their impact. This also directs that any rules which had been sent to the Federal Register but had not yet been published must be immediately withdrawn for review. This results in a stay of the Independent Contract Final Rule and the new Tip Pooling Rule. As a result, the Department of Labor has withdrawn 3 opinion letters related to those rules. See Lake Effect’s previous blogs on the Independent Contractor Final Rule, the Tip Pooling Final Rule, and two of the tip pool opinion letters.
  • Expand COVID-related unemployment benefits: This Executive Order permits employees who refuse work based on COVID health-related concerns to receive unemployment benefits.
  • Promote racial equity: This Executive Order directs the Biden administration to conduct equity assessments of its agencies and reallocate resources to “advanc[e] equity for all, including people of color and others who have been historically underserved, marginalized and adversely affected by persistent poverty and inequality.”
  • Reaffirm gender equity: This Executive Order expands protections against discrimination based on sex in federal agencies to explicitly include sexual orientation, gender identity, and gender expression. This does not have a direct impact on private employers, but does follow the U.S. Supreme Court decision in Bostock v. Clayton County, Georgia (see Lake Effect’s blog here).
  • Enhance COVID-related workplace safety: This Executive Order requires administrative agencies to take “swift action to reduce the risk that workers may contract COVID-19 in the workplace.” This will most likely result in action from OSHA setting forth “science-based guidance to help keep workers safe from COVID-19 exposure, including with respect to mask-wearing; partnering with State and local governments to better protect public employees; enforcing worker health and safety requirements; and pushing for additional resources to help employers protect employees.”

The attorneys and HR professionals at Lake Effect will continue to closely monitor the Biden administration’s executive actions, legislative developments, and their impact on workplaces.

OSHA Issues Guidance on Reporting Work-Related COVID-19 Hospitalizations and Deaths

On September 30, 2020, OSHA published new guidance on employers’ obligations to report employee in-patient hospitalizations and fatalities resulting from work-related cases of COVID-19.

Employers must report hospitalizations with 24 hours: In order to be reportable, an employee’s in-patient hospitalization due to COVID-19 must occur within 24 hours of exposure to the virus at work. If the hospitalization occurs later, it is not reportable. Furthermore, an employer’s duty to report is triggered when the employer knows both that the employee has been hospitalized and that the reason for the hospitalization was COVID-19 exposure at work within 24 hours prior to hospitalization. Once the employer knows both, it has 24 hours to report the hospitalization.

Employers must report fatalities within 8 hours: In order to be reportable, a fatality caused by COVID-19 must occur within 30 days of exposure to the virus in the workplace. If the death occurs later, it is not reportable. Furthermore, an employer’s duty to report arises when the employer knows both that the employee has died of COVID-19 and that the cause of death was work-related exposure to the virus within the prior 30 days.  Once the employer knows both, it has 8 hours to report the fatality.

Notably, the guidance does not specify how employers should decide whether or not a COVID-19 exposure was work-related for purposes of reporting hospitalizations or fatalities. Therefore, employers are left to follow prior OSHA guidance issued in May 2020 as to “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.

An employer may report a work-related COVID-19 hospitalization or death in any of the following ways:

  • Calling the nearest OSHA office
  • Calling the OSHA 24-hour hotline at 1-800-321-OSHA (6742); or
  • Reporting online.

OSHA-covered employers must record all work-related confirmed cases of COVID-19.  See Lake Effect’s prior blog on this topic.

Lake Effect is here to answer your questions about OSHA reporting obligations relating to COVID-19. For a deeper dive into this issue, contact us at info@le-hrlaw.com or 1-844-333-5253. We continue to monitor important legal and HR developments, as well as COVID-related updates, from federal, state, and local authorities. Please keep watching our blogs and emails for the latest information.

Lake Effect is committed to helping your organization maximize its workplace potential, ensuring compliance while preserving your unique culture.

Agencies Update Guidance on COVID-Related Issues as Employees Return to Work

OSHA and the US Department of Labor provide additional guidance on employee health screening information and FFCRA leaves

As more employers resume onsite operations and welcome employees back to the workplace, OSHA continues to update its Guidance on Returning to Work. New guidance highlights potential document retention obligations for employers that record employee health screenings and/or temperature checks related to COVID-19 symptoms. OSHA specifies that if an employer creates records relating to those screenings, the records might qualify as medical records under the Access to Employee Exposure and Medical Records Standard (29 C.F.R. 1910.1020). Under this standard, the employer is required to retain an “employee medical record” for the duration of the worker’s employment plus 30 years. Notably, however, records of these activities will not constitute a covered “employee medical record” for purposes of OSHA’s record retention requirement unless they are records “concerning the health status of an employee which is made or maintained by a physician, nurse, or other health care personnel, or technician.” Furthermore, employers are not required to make a record of health screening responses and/or temperature checks. Employers can choose to simply receive the information in real time, make a decision, and not even create a record of the results. That may be the best practice for employers, given the current uncertainty in this area.

The Department of Labor’s Wage and Hour Division also issued a new Field Assistance Bulletin that addresses the rights and obligations of employees who request FFCRA leaves to care for children this summer. FFCRA requires employers to provide eligible employees with up to 12 weeks of expanded family and medical leave if the employee is unable to work or telework because they need to care for a child whose “place of care” is closed for reasons relating to COVID-19. The bulletin specifies that for purposes of FFCRA, “place of care” includes summer camps, summer enrichment programs, and summer school. Thus, an employee may request the expanded family and medical leave due to such closures and the resulting need to care for a child. However, that employee must support the request, either orally in writing, by providing the employer with:

  • an explanation of the need for the leave,
  • the name of the child,
  • the name of the specific summer camp or program that the child would have attended had it not closed, and
  • a statement that no other suitable person is available to care for the child.

Notably, the employee must also provide some evidence of a plan for the employee’s child to attend the summer camp or program (i.e. prior attendance, submission of an application or a deposit, or some other evidence of an intent to enroll). Recall under prior IRS guidance, parental care is primarily limited to children under age 14, unless the child is older and has certain condition/s that require enhanced care.

If your organization conducts health screenings as part of COVID-19 prevention efforts, or if you have any questions about employee eligibility for FFCRA leaves, contact your HR and employment law partners at Lake Effect. We can help guide you through this rapidly evolving legal landscape. Please keep watching for blogs and emails from us for important legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

OSHA reinstates normal reporting and investigation standards for COVID

On May 19, 2020, the Occupational Safety & Health Administration (OSHA) reversed an earlier enforcement policy for recording cases of COVID. As Lake Effect reported in April, OSHA had announced that it would not enforce its record-keeping requirements on employers to make COVID “work-relatedness” determinations, except when (1) there was objective evidence that an employee’s exposure to COVID-19 was work-related and (2) that evidence was reasonably available to the employer. At that time, OSHA noted that it may be difficult for employers to determine if an employee with COVID-19 contracted COVID-19 at work. Yesterday, OSHA revised that policy.

OSHA will now increase in-person worksite inspections and enforce COVID record-keeping requirements for all employers. Acknowledging the difficulty in determining where an employee may have contracted COVID, OSHA reminded employers that a case of COVID in the workplace is a recordable illness. Employers must record cases of COVID if all of the following are true:

  • An employee has a confirmed case of COVID-19;
  • The employee’s case of COVID is considered to be work-related*; and
  • The illness involves one or more of the recording criteria, including medical treatment beyond first aid or days away from work.

*Note that an illness is considered to be work-related “if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment” unless an exception applies.

Keep in mind that employers with 10 or fewer employees or in certain low hazard industries are exempt from OSHA reporting requirements unless the injury or illness results in hospitalization, amputation, or loss of an eye.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Please visit our COVID-19 resource page for all of our pandemic-related legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Updated CDC and OSHA Guidance Regarding Employees with COVID-19 at Worksite

Two government agencies recently released updated “interim guidance” for employers responding to COVID-19 in the workplace. This is important information for employers in essential and critical businesses who still have active workplaces. On April 8, 2020, the Centers for Disease Control provided new guidance on treatment of workers with suspected or confirmed exposure to COVID-19. On April 10, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released new guidance recording cases of COVID-19.

New CDC Guidance:

  • The CDC advises that “critical infrastructure workers” may continue working following exposure to COVID-19, provided they are asymptomatic and additional precautions are taken.
  • Critical infrastructure workers include workers in food and agriculture, critical manufacturing, information technology, transportation, energy, government facilities, janitorial staff, law enforcement, 911 center employees, hazardous materials responders, and Fusion center employees.
  • Potential exposures are defined as being a household contact or being within 6 feet of an individual with confirmed or suspected COVID-19.  The contact must have been within 48 hours before individual became symptomatic.

Additional precautions that an employer should take include:

  • Pre-screening employees by taking temperature and assessing symptoms before shifts begin.  Ideally, this should be done before a worker enters the worksite.
  • Asking an employee to self-monitor both during and between shifts, following the employer’s occupational health program.
  • Requiring exposed employees to wear a mask at work for 14 days after exposure. Employers can provide masks or employees can wear their own.
  • Requiring all employees to abide by the 6-foot social distancing rule during shifts, as permissible. Employees should not share equipment that must be placed near their mouths or noses.
  • Cleaning and disinfecting all workspaces on a frequent and regular basis, and increasing air exchanges in rooms.
  • If an employee becomes symptomatic at work, they should be sent home immediately.  Employers should track all other employees who had contact with the ill employee in the 48 hours before becoming symptomatic.  Any employee who was within 6 feet of the ill employee should be considered to be exposed to COVID-19. Keep in mind that employee privacy protections still apply.

New OSHA Guidance:

  • If an employer can identify that an employee contracted COVID-19 through worksite exposure, the employer must record that injury in OSHA logs as a “work-related illness.”  COVID-19 is considered a recordable illness and employers must record cases of COVID-19 if the following are true:
    • The employee has a confirmed case of COVID-19;
    • The illness is considered to be work-related; and
    • An illness is considered to be work-related, “if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment,” unless an exception is met.
    • The illness involves one or more of the recording criteria, including medical treatment beyond first aid or days away from work.
  • However, because it may be difficult for employers to determine if an employee with COVID-19 contracted COVID-19 at work, OSHA will not enforce its record-keeping requirements on employers to make “work-relatedness” determinations, except when there is objective evidence that the exposure was work-related and that evidence is reasonably available to the employer.
    • Note: this exception applies only to employers outside of the healthcare industry, first responder organizations and correctional facilities.

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Check out our COVID-19 resource page for all of our pandemic-related legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

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