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Posts Tagged ‘Occupational Safety and Health Administration’

OSHA Issues Guidance On Reopening for Non-Essential Businesses

Posted on: June 24th, 2020

By: Hillary Freesmeier

The Occupational Safety and Health Administration, better known as OSHA, has recently released its Guidance on Returning to Work for those businesses that have been deemed “non-essential” during the COVID-19 pandemic.

The Guidance directs a Three Phase approach to reopening and identifies several categories employers should address in their reopening plans. OSHA continues to encourage employers to consider ways in which to utilize workplace flexibility, such as teleworking, and alternative business operations to provide goods and services to customers, such as curbside pickup.

During Phase 1, employers should consider allowing employees to telework when possible and feasible. For employees returning to the workplace, employers should consider limiting the number of people in the workplace and maintain strict social distancing practices. Flexibilities should also be offered for high risk workers and for those whose household members are considered to be at high risk. Non-essential business travel should be limited.

During Phase 2, employers should continue to make teleworking available where possible, but can allow non-essential business travel to resume. Restrictions on the number of people in the workplace can be eased, but moderate to strict social distancing should be maintained. Employers should also continue to accommodate vulnerable workers as they did in Phase 1.

During Phase 3, businesses may resume unrestricted staffing.

Employers should also develop and implement policies and procedures for preventing, monitoring, and responding to any possible emergence or resurgence of COVID-19 in their workplace or community.

All reopening plans should address:

  • Hazard assessment, which should include practices and procedures to determine when, where, how, and to what sources of COVID-19 employees are likely to be exposed to in the workplace;
  • Hygiene, including practices for hand washing, cleaning, and disinfection;
  • Social distancing;
  • Identification and isolation of sick employees, including employee self-monitoring, screening, and isolation procedures;
  • Returning to work after an employee recovers from COVID-19 or has completed a self-quarantine after exposure to a person with COVID-19;
  • Controls for safe work practices, including providing for personal protective equipment based on your hazard assessment results;
  • Workplace flexibility for teleworking and sick leave;
  • Training to ensure employees know how to identify the signs, symptoms, and risk factors associated with COVID-19 and to prevent the spread in the workplace;
  • Anti-retaliation for those who adhere to guidelines or raise workplace safety concerns.

The Guidance also provides that employers may:

  • Conduct worksite COVID-19 testing if done in a transparent, non-retaliatory manner, and
  • Take worksite temperature checks or other health screenings, such as temperature/symptom screening, self-checks, self-questionnaires, etc.; however, employers should ensure these are conducted in a confidential manner as required by the Americans with Disabilities Act
    • Be aware that if you decide to record these results, these records may qualify as medical records under the Access to Employee Exposure and Medical Records standard, which would require employers to retain the results for 30 years and follow confidentiality standards. However, employers may take employee temperature in real time and forgo maintaining records of the results.

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

OSHA Issues Updated Guidance On When Employers Must Record COVID-19 Cases

Posted on: June 8th, 2020

By: Elizabeth Fellmeth

In OSHA’s original guidance from April 2020, the agency acknowledged the difficulty in determining whether a COVID-19 case was “work-related” due to possible employee infections from outside the workplace.  Most employers did not have a reporting obligation unless the employer had “objective evidence” that the COVID-19 case was work-related.  Under the new guidance set forth below, OSHA confirms COVID-19 is a recordable illness, and all employers – including non-health care employers – are expected to investigate COVID-19 cases and make a determination of work-relatedness.

OSHA’s COVID Recordability Test

A COVID-19 case must be recorded if:

  1. The case is a confirmed case of COVID-19 as defined by the Center for Disease Control and Prevention (CDC)[1]
  2. The case is work-related; and
  3. The case results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.

If the employee meets these three requirements, the COVID-19 case should be recorded on the employer’s OSHA 300 log.  A COVID-19 case should also be coded as a respiratory illness.  In accordance with existing regulations, the only employers that are exempt from maintaining such records are those with 10 or fewer employees or certain low-risk industries.[2]

The key issue for an employer in assessing a COVID-19 case is determining whether it is “work-related.” OSHA’s new guidance indicates it will consider the following factors in determining whether an employer has made a reasonable determination on this issue:

  1. The reasonableness of the employer’s investigation into work-relatedness. 

Under this new standard, it would be reasonable for an employer to engage in the following steps upon learning of the employee’s COVID-19 illness:

  • Ask the employee how he or she believes the virus was contracted;
  • Discuss with the employee activities at work and outside of work that may have led to the illness; and
  • Review the employee’s work environment for potential exposure.

OSHA also notes that “due weight” should be given to the opinion of a medical provider or a public health authority in making a determination.  With that said, the employer is not expected to undertake extensive medical inquires.

  1. The evidence available to the employer.

This will include the information reasonably available to the employer at the time it made the decision about work-relatedness.  However, it can be changed later when the employer learns additional information that may impact the determination.

  1. The evidence that a COVID-19 illness was contracted at work.

The new guidance outlines some evidence that weigh in favor or against work-relatedness:

  • Evidence that may weigh in favor of work-relatedness includes:
    • Several cases developing among workers who work closely together and there is not an alternative explanation; and
    • An employee testing positive shortly after lengthy, close exposure to a customer or coworker who has a confirmed case and there is not an alternative explanation.
  • Evidence that may weigh against work-relatedness includes:
    • A worker who tests positive is the only worker in his or her vicinity to contract the virus and his or her job duties do not involve frequent contact with the public; and
    • A worker who contracts COVID-19 has close contact with a family member or close friend who is not a coworker who has the virus.

In summary, it is imperative that employers conduct a reasonable and objective evaluation for work-relatedness when assessing COVID-19 cases in the workplace.


[1] The CDC defines a confirmed case as an individual who tests positive for SARS-CoV-2, the virus that causes COVID-19.

[2] https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904SubpartBAppA

OSHA Developments Favorable for Employers

Posted on: October 24th, 2018

By: Amy Bender

Two recent OSHA developments signal good news for employers.

The first relates to the scope of OSHA inspections of an employer’s workplace. In a recent federal court case, after an employee of a poultry processing plant was injured at work, the employer reported the incident to OSHA as required. It also provided 3 years of its injury and illness (“OSHA 300”) logs and permitted OSHA to inspect the particular hazards relating to the injury. OSHA then sought a warrant to inspect the employer’s entire facility based on this information as well as the fact that poultry processing plants were included in OSHA’s Regional Emphasis Program, which had identified hazards of particular concern to that industry. After the warrant was issued, the employer objected. The court agreed with the employer and quashed the warrant, finding a lack of reasonable suspicion to support such a broad inspection and a lack of evidence that OSHA selected the employer for inspection applying neutral criteria. Although the permissible scope of an OSHA inspection will depend on the individual circumstances of each situation, this case can give employers some comfort that OSHA’s authority is not unfettered. The case may be read here: USA v. Mar-Jac Poultry, Inc., Case No. 16-17745  (11th Cir. Oct. 9, 2018).

The other development relates to OSHA’s stance on post-accident drug testing and workplace safety programs. As we previously reported here, OSHA published a final rule in 2016 prohibiting mandatory, across-the-board post-accident drug testing as being discriminatory against employees based on their injury or illness reporting and limited testing to situations where employee drug use was a likely factor in the incident. The final rule also required employers to develop employee injury and illness reporting requirements that meet certain criteria, including informing employees of their right to make such reports without fear of retaliation. The final rule left employers scrambling to revamp their long-standing and well-meaning policies and procedures relating to workplace safety. Fortunately, OSHA now has issued a memorandum clarifying that it does not prohibit workplace safety incentive programs or post-incident drug testing. Such programs are impermissible only to the extent they are intended to penalize employees for reporting a workplace injury or illness. The memorandum provides additional guidance on what will be considered acceptable reporting policies and drug-testing procedures. The memorandum is available here.

If you have any questions or would like more information, please contact Amy Bender at [email protected].