On May 19, the Occupational Safety and Health Administration (OSHA) changed
course again related to recordability of positive COVID-19 cases. The federal agency is now
asking employers to investigate the potential genesis of any cases of COVID-19 among their
employees. This guidance has led to confusion and questions among employers in the midst of
trying to get their workplaces back up and running.
This is the third time since the onset of the pandemic that OSHA has issued
guidance. In March, it sent a memo reminding employers that COVID-19 diagnoses are recordable
events; in April, it changed its position as previously reported (see "Is COVID-19 Recordable or Reportable to OSHA?").
As more businesses get up and running again, employers are searching for a
process and guidance on how to handle workers who come to them with positive COVID-19 tests.
Under the revised enforcement policy, as of May 19, 2020, employers must "make reasonable
efforts" to investigate confirmed cases of coronavirus in the workplace to determine if they were
more likely than not work-related.
The guidance asks employers to question workers about how they believe they
contracted the virus and what types of activities they were engaged in both in and out of work
that could have led to virus exposure. It also asks employers to look for other workers who could
have potentially been exposed to coronavirus in the workplace.
Only COVID-19 claims that were determined to have come from the workplace
and required hospitalization or days away from work need to be recorded, according to the
This is a drastic change from April 10, 2020, when OSHA said COVID-19
recordability would only apply to frontline workers—specifically healthcare workers, first
responders, and correctional institution employees—except in cases where objective evidence
pointed to workplace acquisition with no alternative explanation.
OSHA guidance provides some examples to help employers. For example, if
multiple people in a particular business unit test positive for COVID-19, the assumption is that
these coronavirus cases are work-related. Employers must interview workers who test positive to
determine if they came into contact with someone outside of work that was COVID-19 positive. In
essence, the employer must conduct their own version of contact tracing to determine if other
employees may have been exposed and document all of the information.
Recordable versus Compensable
Keep in mind that while OSHA rules related to COVID-19 recordability are
ever-changing, just because a case is OSHA-recordable does not mean it is compensable under
workers compensation. Each state has its own rules related to workers compensation
compensability. Typically, viruses are not compensable under workers compensation
Yet, some states such as California and Illinois are issuing
rules making COVID-19 compensable if it was contracted in the workplace by workers deemed to be
It is important to review your state workers
compensation guidelines and stay in contact with your insurer and broker related to state
workers compensation reporting requirements.
COVID-19—OSHA Recommends Hazard Assessment for Construction
On May 27, 2020, OSHA updated its COVID-19 guidance for the construction
industry. Keep in mind that the guidance provided is not a standard or regulation, and it is not
legally binding. Yet, construction companies should address OSHA's recommendations as solid
safety best practices to avoid citations related to the OSHA General Duty Clause. The following
is a summary of OSHA's latest guidance.
OSHA recommends that construction companies assess hazards, evaluate risks,
and implement controls based on the four exposure risk levels OSHA has used for all of its
COVID-19–related guidance and recommendations.
Tasks that allow employees to remain at least 6 feet apart and
involve little contact with the public, visitors, or customers
Note: For activities in the lower (caution) risk category. OSHA's Interim Guidance for Workers and Employers of Workers at
Lower Risk of Exposure may be most appropriate.
Tasks that require workers to be within 6 feet of one
Tasks that require workers to be in close contact (within 6 feet)
with customers, visitors, or members of the public
Entering an indoor work site occupied by people such as other
workers, customers, or residents suspected of having or known to have COVID-19,
including when an occupant of the site reports signs and symptoms consistent with
Note: Employers may considers delaying this work following the
Category not applicable for most anticipated work tasks
Note: Most construction work tasks are associated with no more than
high exposures risks; see the work tasks associated with lower, medium, or high risk on
OSHA indicates that the "Very High" risk level is "not applicable for most
anticipated work tasks" in the industry. The "High" risk level is for tasks requiring workers to
enter "an indoor site occupied by people such as other workers, customers, or residents
suspected of having or known to have COVID-19," such as a nursing home or other healthcare
facility. The "Medium" risk level is for "tasks that require workers to be within 6 feet of one
another" or "customers, visitors, or members of the public." The "Lower" risk level covers tasks
that "allow employees to remain at least 6 feet apart and involve little contact with the
public, visitors, or customers."
OSHA indicates that a job hazard
analysis (JHA) focused on the specific risk level of the analyzed tasks will help construction
organizations protect their workforce.
Source: National Institute for Occupational Safety
Utilizing a tried-and-true safety process called the
Hierarchy of Controls, OSHA provides examples of when engineering, administrative, and personal
protective equipment (PPE) controls can protect workers from COVID-19 exposures.
Engineering controls isolate people from hazards. OSHA provided the following
Use physical barriers, closed doors, walls, and plastic sheeting on
high-risk-level projects such as an indoor construction environment, like a medical facility or
hospital, where COVID-19 has been present at the worksite.
Revisit silica exposure to eliminate the use of an N95 respirator by
identifying improvements to water delivery or dust collection systems that will reduce ambient
dust when cutting, breaking, jackhammering, and drilling.
Administrative controls change the way people work. OSHA recommends the
Employers use questions for screening work assignments when "scheduling
indoor construction work to assess potential exposures and circumstances" before sending
workers inside. OSHA recommends employers first ask if the work is "essential, urgent, or
emergency work," and if so, use a JHA to determine how to best minimize exposure.
If workers must enter home environments or areas where construction is
ongoing in occupied buildings, OSHA recommends implementing standard operating procedures and
employee training. Those procedures could include requesting any quarantined or isolated
nonworkers (i.e., residents) to remain physically separated from workers, asking residents to
communicate with workers remotely instead of in person, and asking residents to wear face
coverings. OSHA also recommends taking measures to ensure that indoor working areas have
OSHA recommends that construction workers be trained on COVID-19-related
topics, such as the following.
Recognizing the signs and symptoms of the disease
Understanding how the disease spreads and how infected people can be
asymptomatic and still spread the disease
The need to follow company policies and procedures
Social distancing and hygiene practices
The use of PPE
The importance of staying home if sick
The amount of training an employer should do for a particular job site or
task will depend on the prior determination of the risk level. OSHA's guidance indicates that
employees in occupied indoor worksites will require broader training.
Protect the Worker with PPE
OSHA makes it clear that "[c]loth face coverings are not PPE" and "[t]hey
are not appropriate substitutes for PPE" such as N95 respirators or medical face masks. OSHA
makes this distinction to confirm that employers do not need to conduct written worksite
assessments and training for face coverings, which would be required of any PPE. The agency
recommends face coverings as a public health measure and notes that cloth face coverings protect
other people, not the wearer. OSHA does not require face coverings on construction sites.
Furthermore, OSHA's guidance reminds construction organizations when a respiratory hazard
exists, employers must comply with OSHA's respiratory protection standard (29 C.F.R. section 1910.134).
Safe Work Practices
OSHA's updated guidance also recommends employers implement various safe
working best practices, including the following.
Adopt staggered work schedules (e.g., provide alternating workdays or
extra shifts to reduce the total number of employees on a job site at any given time and to
ensure physical distancing).
Identify choke points where workers are forced to stand together, such
as hallways, hoists and elevators, ingress and egress points, break areas, and buses, and
implement policies to maintain social distancing.
In elevators and personnel hoists, ensure 6 feet distance between
passengers in all directions and equip operators with appropriate respiratory protection and
other necessary PPE.
Coordinate site deliveries in line with the employer's minimal contact
and cleaning protocols. Delivery personnel should remain in their vehicles if at all
Institute a rigorous housekeeping program to reduce dust levels on the
Keep in-person meetings (including toolbox talks and safety meetings) as
short as possible, limit the number of workers in attendance, and use social-distancing
Ensure a clean toilet and handwashing facilities. Clean and disinfect
portable job-site toilets regularly. Fill hand sanitizer dispensers regularly. Disinfect
frequently touched items (i.e., door pulls and toilet seats) regularly.
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