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 guidance.
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 insurance.
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 essential workers.
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.
Risk-Level Assessment
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.
Lower
(caution) |
Medium |
High |
Very High |
- 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
another
- 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 COVID-19
Note: Employers may considers delaying this work following the
guidance below.
|
- 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 this chart.
|
|
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.
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 examples.
- 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
following.
- 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 adequate airflow.
- 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 possible.
- Institute a rigorous housekeeping program to reduce dust levels on the
job site.
- 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 practices.
- 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.