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OSHA Revises Guidance on Investigation of COVID-19 Cases and Return-to-Work Expectations

    OSHA Revises Guidance on Investigation of COVID-19 Cases and Return-to-Work Expectations

    By Alexandra Lapes, Esq. and Tracey I. Levy, Esq.

    OSHA has reversed course and most recently issued guidance stating that it generally expects employers with ten or more employees to conduct a reasonable investigation to determine whether an employee who reports testing positive for COVID-19 was infected with the virus at work.  The revised guidance indicates that an employer’s investigation into work-relatedness will generally be deemed sufficient if the inquiry considers all reasonably available evidence and includes:

    • asking how the employee believes the illness was contracted;
    • discussing the employee's work and out-of-work activity, while respecting privacy; and
    • reviewing the employee's work environment for potential COVID-19 exposure such as through other workers in that environment contracting the illness.

    The incident need not be recorded as a COVID-19 work-related incident if, after a reasonable and good faith inquiry, an employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to that particular case.

    OSHA also recently published new Guidance on Returning to Work, which includes OSHA requirements for PPE, respiratory protection, and sanitation.  As employees return to work, OSHA suggests employers address 9 guiding principles that include:

    1. Conducting a hazard assessment of all employee's job tasks and job categories to determine potential exposure in the course of their job duties and a determination of the PPE requirements specific to the employer’s worksite.
    2. Implementing hygiene practices for handwashing, respiratory etiquette, cleaning, and disinfecting the workplace.
    3. Maximizing social distancing practices to maintain six feet distance between all people in the workplace, including limiting business occupancy and posting reminders and directional signage.
    4. Identifying and isolating sick employees by asking workers to self-evaluate for symptoms and establishing a protocol for managing people who may become ill in the workplace.  Note that, while temperature checks are permissible, the EEOC has issued guidance that employers cannot require proof of antibodies as a condition of returning to work.
    5. Following return to work guidance issued by the CDC after illness or exposure.
    6. Selecting and implementing control measures, including physical barriers or enhanced ventilation; staggering shifts and other social distancing, and monitoring use of appropriate PPE.  
    7. Being flexible with workplace policies and accommodations to minimize workers’ potential exposure.
    8. Training workers on the signs, symptoms, and risk factors associated with COVID-19, including the protective measures are in place and proper use of PPE.
    9. Ensuring anti-retaliation practices are in place and notifying employees of their rights to a safe and healthy work environment.

    Ultimately, employers are responsible with providing a safe work environment.  Adherence to the guidance issued by OSHA and the CDC are significant in satisfying that obligation.