Within the last few days, two federal agencies, the Equal Employment Opportunity Commission (“EEOC”) and the Department of Labor’s (“DOL”) Occupational Safety and Health Administration (“OSHA”), issued new guidance related to the COVID-19 crisis.
On April 9, the EEOC posted additional guidance for employers regarding COVID-19, the ADA, and other federal employment laws.
The guidance discusses the permissibility of whether employers can do the following:
The guidance additionally does the following:
A day thereafter on April 10, 2020, OSHA issued interim guidance on employers’ duties related to reporting cases of COVID-19. This is to clarify employers’ responsibilities when it comes to reporting illnesses.
Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19 if the case:
OSHA treats COVID-19 as a recordable illness if it meets the foregoing general principles (by contrast, colds and flus are not recordable illnesses). Despite expecting employers to treat COVID-19 as a recordable illness, OSHA recognizes that “employers . . . may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposure at work” especially in fields other than healthcare, emergency response, and correctional institutions because of the strong possibility of “community transmission” with that type of employment Therefore, OSHA will “exercis[e] its enforcement direction in order to provide certainty to the regulated community.”
In other words, OSHA will not enforce regulations requiring COVID-19 illness reporting in such fields except where:
OSHA clarified its enforcement discretion to “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects,” rather than on making difficult determinations as between work-related and community-related virus transmission. Despite issuing this directive, OSHA will continue to require that workers in the healthcare industry, emergency response organizations (such as EMS/EMTs, firefighters, and law enforcement), and correctional institutions “make work-relatedness determinations” given the greater likelihood of work-related transmission of the virus. In those industries, employers must continue to evaluate the employee’s work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition, or significantly aggravated a pre-existing condition.
Even in those industries where work-related transmission is more likely, employers should understand that recording or reporting a work-related injury, illness, or fatality does not mean the employer or employee was at fault, or that an OSHA rule has been violated, or that the employee is eligible for workers’ compensation or other benefits. Reporting or recording workplace illnesses like COVID-19 will not result in an automatic imposition of liability, but employers’ failure to report known or suspected work-related COVID-19 diagnoses may have significant regulatory consequences.
Notwithstanding the above federal guidance, California employers have to be careful to ensure that they are also complying with California standards. See for example, Cal-EDD, State of California DIR, Cal-DFEH, and Cal-OSHA (for agricultural employers).
We will continue to monitor this rapidly developing situation and provide updates as appropriate. Should you have any questions with any of this, please feel free to reach out to us.
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