Updated COVID-19 Guidance for Employers: Week Ending April 17, 2020
OSHA’S INTERIM GUIDANCE
Last week the US Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued interim guidance for enforcing OSHA’s recordkeeping requirements as it relates to recording cases of COVID-19. The Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) explains that COVID-19 is a recordable illness if 1) the case is a confirmed case of COVID-19; 2) the case is work-related; and 3) the case involves one or more of the general recording criteria, such as medical treatment beyond first aid or days away from work. OSHA, however, has stated that it will not enforce its recordkeeping requirements for employers who are not in the healthcare industry, emergency response organizations or correctional institutions to make work-relatedness determinations unless:
1. There is objective evidence that a COVID-19 case may be work-related, such as a number of cases developing among workers who work closely together without an alternative explanation; and
2. The evidence was reasonably available to the employer, such as information given to the employer by employees or information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.
Employers of workers in the healthcare industry, emergency response organizations, such as emergency medical, firefighting, and law enforcement services, and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904.
The recent interim guidance does not appear to relax the reporting of a work-related hospitalization or death, which would require an employer to notify OSHA within 8 hours of any work-related incident resulting in a fatality or within 24 hours for any worked related incident resulting in an in-patient hospitalization.
OSHA has also recently released alerts listing safety tips employers can follow to help protect manufacturing workers, retail workers, and the package delivery workforce from exposure to COVID-19. These alerts can be found in .pdf form at COVID-19 Guidance for the Manufacturing Industry Workforce, COVID-19 Guidance for Retail Workers, and COVID-19 Guidance for the Package Delivery Workforce.
EEOC TECHNICAL ASSISTANCE Q&A
The Equal Employment Opportunity Commission also continues to add technical assistance questions and answers on its What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws website. For example, as recently as Friday, April 17, 2020, the EEOC clarified that during the COVID-19 pandemic, an employer should still engage in the interactive process, and if the employee’s disability is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one the employee requested or any other. The EEOC also identified relevant considerations regarding whether a requested accommodation is an undue hardship because it poses significant difficulty or significant expense during the COVID-19 pandemic, such as whether the employer has a sudden loss of some or all of its income stream because of the COVID-19 pandemic. Importantly, with regards to screening workers, the EEOC had stated that “employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time”.
GUIDANCE ON USERRA
Finally, the US Department of Labor’s Veteran’s Employment and Training Services released a brief factsheet concerning COVID-19 Uniformed Services Employment and Reemployment Rights Act. This factsheet reminds employers that members of the National Guard or Reserves who are called to active duty in response to the COVID-19 emergency are covered by the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) and are entitled to the applicable leave and return to work protections thereunder.
We will continue to monitor federal, state, and local developments to keep you informed of additional guidance and other changes that impact employer obligations during the COVID-19 pandemic.
THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE. LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.