Lisa R. Godlewski

Lisa R. Godlewski

AGMA

An Evolving “New Normal”: OSHA’s Recent COVID-19 Policy Changes

As the COVID-19 pandemic has evolved, so too have OSHA policies, as seen in three recent OSHA announcements affecting the construction industry. OSHA issued new construction industry guidelines to protect workers from coronavirus. The agency also revised its COVID-19-related recordable incident policy. Finally, it released a new enforcement protocol addressing a changing COVID-19 risk.

Construction Industry Guidance

What do the new guidelines say?

Based on existing COVID-19 policies, the new construction guidelines introduce additional measures for workforces operating under continued risks from the disease. The guidelines cover hazard assessment, engineering and administrative controls, safe work practices, and personal protective equipment (PPE). The new policy illustrates construction activities that fall into the existing risk exposure levels—low, medium, high, and very high—to help employers make job hazard analyses. Recommended engineering controls address barrier mechanisms to protect workers who have to operate near known or suspected COVID-19 cases. The policy’s administrative controls tailor earlier guidance to address construction-specific issues and include screening work assignments; updating policies to align with existing CDC, OSHA, and state guidelines; and training workers on social distancing, hygiene, PPE use, and wearing facemasks. Additional safe work practices include using staggered shifts, performing regular workplace cleaning, providing hand-washing stations, and scheduling and screening visitors to minimize contact. The policy clarifies that facemasks do not qualify as PPE so that PPE training requirements do not apply.

What does this all mean?

These industry guidelines seem to compromise a recent dispute regarding emergency temporary standards. The OSH Act authorizes these measures where workers face grave dangers, and OSHA issues them without public input to take effect immediately. Labor groups pushed for these regulations as necessary to protect workers because the current OSHA guidelines do not carry the same force regulations do nor do they target construction industry-specific hazards. Employers, however, countered that the construction industry already changed operations significantly to address COVID-19 risks, making additional regulations unnecessary, especially ones crafted in far too little time to understand the problem properly.

However this debate plays out, it may not change how jobsites run while the pandemic risk persists. Construction industry businesses should follow this new OSHA policy because abiding by these guidelines helps to ensure a safe work environment for employees, which OSHA’s general duty clause requires. Further, many states, including Pennsylvania, have issued specific orders directing COVID-19 safety requirements. Consultation with counsel will help ensure particular jobsite policies and practices comply with these new OSHA guidelines and other existing requirements.

COVID-19 as a Recordable Illness

How has OSHA revised its policy?

An OSHA memorandum revised prior guidance on whether a COVID-19 illness qualified as “workplace related,” which an employer must record on its OSHA safety log (Form 300). Previously, an employer had to record COVID-19 cases as workplace-related only where the employer had reasonably available objective evidence that transmission resulted from the workplace. The old policy allowed employers to “focus their response efforts on implementing good [workplace] hygiene practices . . . , rather than on making difficult work-relatedness decisions.”

Under the new guidelines, an employer must deem a COVID-19 case as work-related where:

  • The case is confirmed under CDC requirements, g., at least one respiratory specimen that tests positive for coronavirus, which causes illness
  • A work environment event or exposure caused or contributed to the COVID-19 case
  • The case results in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness

In short, employers need to record a COVID-19 case as work-related if the employer determines that it is more likely than not that workplace exposure “played a causal role” in the COVID-19 case based on a reasonable and good faith inquiry. Whether an employer’s investigation suffices depends on the investigation’s scope and the evidence available to the employer. Investigating COVID-19 cases should include discussions with employees and review of the work environment. Evidence tending to show workplace transmission includes multiple employees who work in close proximity contracting the illness, exposure to a customer or co-worker confirmed to have COVID-19, or work-related frequent and close exposure to the general public in a locality with “ongoing community transmission.” On the other hand, an isolated incident among a group of co-workers with infrequent public contact does not qualify as work-related. Nor does a case involving a worker’s association with a non-co-worker who has COVID-19 during a period of infectiousness.

What does the revised standard mean?

This revised standard broadens the scope of investigation businesses need to conduct when a worker contracts COVID-19. But the new policy provides less guidance for determining whether workplace exposure “more likely than not” “played a causal role” in a COVID-19 case, mainly where potential sources of transmission include workplace and non-workplace exposures, as only one exposure can cause the illness. Determining whether or not an employee, co-worker, or the workplace “played a causal” role in one’s contracting the illness typically falls outside a business’ expertise. Further, although recording a COVID-19 illness does not necessarily mean an OSHA violation occurred, these recorded events could affect aggregate safety data and thus perception of a company’s safety record. That perception has business implications for contracting and hiring. Because this new policy gives rise to plenty of business issues, construction companies should consult their counsel about how best to investigate and record COVID-19 cases among their employees.

OSHA’s Revised Enforcement and Inspection Protocol

As COVID-19 cases have decreased in some parts of the country, OSHA revised its inspection protocol which focused on addressing coronavirus-related workplace safety. In areas where COVID-19’s spread has “significantly decreased,” OSHA will return to pre-pandemic inspection priorities: imminent dangers, fatalities, complaints, and programmed inspections—with some exceptions. OSHA will still prioritize COVID-19 cases and use alternative investigations (phone/fax or rapid response) to deploy its resources efficiently. Where COVID-19 cases remain elevated (or become so), OSHA will continue to focus inspection efforts on protecting against COVID-19, which means prioritizing COVID-19-related fatalities, imminent dangers, high-risk areas, and complaints.

Source: Cohen Seglias Pallas Greenhall & Furman PC

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