OSHA To Do More (CONT’D FROM PAGE 24)
California, but will likely resemble the Virginia standard, which follows CDC guidance,” says Foulke. Employers will likely be required to conduct workplace risk assessments and maintain written Covid-related action plans to include social distancing, masks, sanitation and training. “One thing I think you’re going to see during the Biden administration is a focus on musculoskeletal disorders (ergonomics, repetitive motions, lifting) and combustible dust,” adds Foulke. “Also, I think sometime this year OSHA will go back to requiring that 250-plus employers in cer- tain industries file not only 300A Summaries but also the 300 logs and the First Report of Injury forms.” Employer organizations will likely litigate onerous OSHA rules. “Trade associations have been successful in the past in getting injunctions against OSHA regulations
deemed outside the agency’s jurisdiction or overly bur- densome,” notes Douglas E. Witte, who represents busi- nesses in labor and employment law matters at Madison, Wisconsin based Boardman & Clark ( boardmanclark. com ). “Sometimes the regulations are modified, or simply delayed for a year or longer.” Work-Related Illness
If an employee comes down with Covid and misses work time or goes to the hospi- tal, is the illness recordable as work related? The answer is often less than clear. “Up until now, OSHA has not been pushing too hard on employers who claim COVID-19 infections occurred outside the workplace,” says Witte. Employers have been operating under fairly liberal standards, thanks to OSHA guidance issued in the spring of 2020 that allowed Covid illnesses to be categorized as not work related if an “alternative explanation” could account for the infections. Unfortunately, the term “alternative expla- nation” is vague, and OSHA does not provide examples. “The guidance is being interpret- ed, by some, as indicating that if the employer can point to some exposure away from the workplace, then the case can be deemed not work-related,” says Principe. Others are even taking the position that because Covid is being spread everywhere an infection is not work-related unless the employee has continually commuted in their own car, stayed in their own house, and not gone to a grocery store or interacted with the public in any way. That kind of liberal interpretation, though, skirts the edge of justice. “I think you need more concrete evidence that the employee was exposed to an infected person away from work,” cautions Principe. “Perhaps their spouse, children, or people they socialized with have Covid, or perhaps they attended a super-spreader event.” Faulty categorizations can be costly. “OSHA issues citations to em- ployers who fail to properly record or report
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March 22, 2021
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