OSHA Changes Its April Guidance Regarding the Duty to Record Positive COVID-19 Screens
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On May 19 OSHA issued yet another Guidance regarding an employer’s duty to record positive COVID-19 screens. This Guidance, effective May 26, walks back some of the more lenient language of OSHA’s Guidance issued just last month.
Under OSHA’s prior Guidance, most employers only had to record a positive COVID-19 screen if objective evidence indicated that the infection occurred at work.
Effective May 26, OSHA;s new Guidance indicates that all employers covered by the record keeping regulations must investigate a positive COVID-19 screen and treat the case as work-related if it is “more likely than not” the result of workplace exposure. OSHA says it will still use discretion when investigating a failure to record or report, which implies that it will be reticent to issue a citation if an employer can prove that it conducted a reasonable investigation after learning of the positive screen.
The Guidance indicates that in most cases when an employer learns that an employee is infected, an investigation will be sufficient if the employer:
Asks the employee how she believes she became infected;
Discusses with the employee her work and out-of-work activities that may have led to the infection;
Reviews the employee's work environment for potential COVID-19 exposure, taking into special consideration any other workers who have been infected.
Although the Guidance does not specifically require it, employers should consider documenting their investigation. I would recommend that employers quickly develop a standardized form to use for such investigations.
You can find the new Guidance here: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19