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Workers Compensation Issues

OSHA and COVID-19 Updates

Tricia Kagerer | June 12, 2020

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Construction worker with mask and helmet putting work gloves on

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.

Source: OSHA

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.

Pyramid showing NIOSH hierarchy of controls

Source: National Institute for Occupational Safety and Health

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.

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