As we previously reported, in late May, Cal/OSHA issued a new set of COVID-19 Recordkeeping and Reporting FAQs that represented a serious departure from federal OSHA’s guidance on that same subject. Throughout the pandemic, federal OSHA has maintained that employers need only record and report COVID-19 cases that are:
- Confirmed by a positive laboratory test of a respiratory specimen; and
- “More likely than not” the result of a workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.
Cal/OSHA’s May 27th guidance, however, breaks from both of those key requirements for COVID-19 recordkeeping, rejecting the need for a confirmed case and flipping the burden of establishing work-relatedness on its head, establishing instead a presumption of work-related if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.
Aside from being bad policy that will result in many illnesses being recorded on 300 Logs only in California that were not actually COVID-19 cases, and/or that were not caused by exposures in the workplace, Cal/OSHA’s unique COVID-19 recording criteria are not permitted by law.
More COVID-19 cases on your logs can create significant risk of liability. For example, there is no doubt an avalanche of wrongful death and personal injury suits waiting around the corner, and while recording an illness is not an admission of wrong-doing, it is an admission that the illness was likely spread in your workplace. Plaintiffs’ attorneys will make hay of that to show your exposure control efforts were insufficient, or to show that the illnesses experienced by their clients (customers, contractors, family members of employees, and others whose suits would not be barred by workers’ compensation exclusivity) likely were also contracted in your workplace or because of your workplace. And of course, more illnesses having to be recorded also creates more potential for Cal/OSHA citations for failure to record or failure to record timely or accurately.
The Coalition for Uniformity in COVID-19 Recordkeeping
Conn Maciel Carey organized and represents the Coalition for Uniformity in COVID-19 Recordkeeping, which is composed of a broad array of California employers impacted by Cal/OSHA’s COVID-19 recordkeeping requirements. Continue reading