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Shortly after the onset of the COVID-19 pandemic in the United States, OSHA provided general guidance to employers for keeping their employees safe. These are guidelines and are not specific standards or regulations and do not create new legal obligations. However, employers must carefully consider the guidelines because OSHA may cite employers under the General Duty Clause, wherein employers must provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm …” OSHA’s guidelines change regularly, so it is important to monitor them and stay up to date.

Among this OSHA guidance are guidelines regarding modifying the physical workplace; inserting physical barriers and increasing space between workstations; limiting occupancy in common areas and elevators; creating visual cues, like markings on floors and walls; implementing enhanced routine cleaning and disinfecting schedules; requiring hand-washing, face coverings and sanitation products; requiring social distancing and other administrative controls, like staggered work shifts; limiting visitors and nonessential travel; and screening employees and visitors for fever and other COVID-19 symptoms. Employers must consider what guidelines are necessary and reasonable to address the COVID-19 hazard at their jobsites.

A written exposure prevention plan can be important to show that employers are adequately addressing the COVID-19 hazard. Federal OSHA does not require such a plan, but many states do. This plan should address the above mitigation measures and responsibilities. It should also provide protocols for addressing employees who have symptoms and/or test positive for COVID-19 and for returning to work after isolation or quarantine. Employers should ensure employees are trained on the hazards associated with COVID-19, and such training should be documented. Contractors should make sure that all employers onsite have some sort of plan in place to reasonably address the hazard.

From across the country, OSHA has been receiving a large number of employee complaints relating to COVID-19, including complaints of inadequate personal protective equipment, alleged exposures and employees not feeling safe to return to work. On May 19, 2020, OSHA issued guidance on its response plan reinforcing its prioritization of COVID-19 cases. OSHA stated that it will continue onsite inspections, specifically targeting high-risk work places and continuing to perform Rapid Response Investigations.

In addition, OSHA revised its guidance on recordability of COVID-19 cases and now requires employers to record COVID-19 exposure when the case is a confirmed case of COVID-19; the case is work-related; and the case meets general recording and reporting criteria set forth in the standards (e.g., more than first aid). (OSHA previously required only certain facilities like hospitals and correctional facilities to record cases.)

Because of the difficulty determining what is work-related, employers must be reasonable in their determination. OSHA will look to the following.

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

When the employer learns of an employee’s COVID-19 illness, the employer should conduct (and document) an investigation that includes:

1. asking how the employee believes he contracted COVID-19; 
2. while respecting employee privacy, discussing with the employee his work and out-of-work activities that could have led to the COVID-19 illness; and 
3. reviewing the employee’s work environment for potential exposure.

2. The evidence available to the employer.

The employer should make a determination of work-relatedness based on the information reasonably available to the employer at the time. If the employer later learns additional information, the logs should be updated based on the newly discovered information.

3. The evidence that COVID-19 was contracted at work. 

While there is no simple formula for determining work-relatedness, OSHA will consider the following.

• A COVID-19 illness is likely work-related when several cases develop among workers who work closely together; an employee contracts it shortly after (within two days of) lengthy, close exposure to a customer or coworker who has a confirmed case of COVID-19; or the employee regularly interacts with the public as part of their job duties and there is no alternative explanation.
• A COVID-19 illness is likely not work-related if the employee is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public.
• A COVID-19 illness is likely not work-related if the employee, outside the workplace, closely and frequently associates with an individual (e.g., a family member, significant other, or close friend) who has COVID-19; is not a coworker; and exposes the employee during the period in which the individual is likely infectious.

If, after the reasonable and good faith investigation, the employer cannot determine whether it is more likely than not that the exposure occurred in the workplace, the employer does not need to record that COVID-19 illness. This highlights the importance of conducting a thorough investigation and documenting the results.

The guidance on addressing COVID-19 hazards in the workplace is ever-changing. The most important thing is to remember to remain diligent and take reasonable steps to protect employees from the hazards.