Coalition for Uniformity in COVID-19 Recordkeeping Advocates for Cal/OSHA to Realign its Requirements

By Conn Maciel Carey’s COVID-19 Task Force

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:

  1. Confirmed by a positive laboratory test of a respiratory specimen; and
  2. “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, Cal-OSHA RK FAQSestablishing 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

Cal/OSHA Establishes a Presumption of Work Relatedness in new COVID-19 Recording and Reporting Guidance

By Conn Maciel Carey’s COVID-19 Task Force

As we previously reported, in early April, the Head of Cal/OSHA, Division Chief Doug Parker, provided feedback about Cal/OSHA’s COVID-19 Recordkeeping and Reporting expectations.  The signal to employers back then was that Cal/OSHA would be following Federal OSHA’s guidance on when employers must record COVID-19 cases on their 300 Logs, and that is not very often.

Just last week, however, Cal/OSHA issued a new set of COVID-19 Recordkeeping and Reporting FAQs, indicating that it has changed course from Division Chief Parker’s April letter.  This move comes only a few days after Fed OSHA reversed course with respect to its own COVID-19 Recordkeeping and Reporting guidance.Cal-OSHA RK FAQS

To be clear, while Fed OSHA’s latest COVID-19 Recordkeeping guidance does retreat from some of the early relief OSHA had offered employers, in substance, it merely changes the landscape around the edges — requiring more employers to analyze work-relatedness for COVID-19 cases.  Still fed OSHA only requires recording or reporting COVID-19 cases where it is “more likely than not” that a COVID-19 case resulted from workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.

Among other stark differences, Cal/OSHA’s new guidance flips the burden of establishing work-relatedness on its head.  Now, according to Cal/OSHA, a COVID-19 case in California will be presumed to be work-related if any workplace exposure is identified, even if the cause of the illness is more likely attributable to a non-workplace exposure.

Confirmed Case

Unlike Fed OSHA’s previous and current recordkeeping guidance, Cal/OSHA’s FAQs now make clear that Cal/OSHA does NOT require a positive test for COVID-19 to be necessary to trigger recording requirements.  Cal/OSHA states: Continue reading

Conn Maciel Carey’s Multi-Disciplinary COVID-19 Task Force Resources

By Conn Maciel Carey’s COVID-19 Task Force

As employers around the country grapple with the employment law and workplace safety implications of the 2019 Novel Coronavirus (“COVID-19”), COVID-19 Task Force PageConn Maciel Carey formed a national, multi-disciplinary legal and regulatory task force dedicated to helping our clients across all industries manage the multitude of pandemic-related issues employers are facing and preparing them for the tidal wave of litigation that is waiting around the corner.

As part of our COVID-19 Task Force, the firm’s dedicated Workplace Safety, Labor and Employment, and Litigation attorneys have produced a comprehensive set of resources to guide employers through this uncharted territory and the unique workplace challenges presented by the presence of a new health hazard in our nation’s workplaces.

We have now pulled those resources together in a single location — Conn Maciel Carey’s COVID-19 Task Force Page, where employers can find:

Our COVID-19 Task Force has spent the last few months working with our clients to: Continue reading

COVID-19 OSHA Recordkeeping and Reporting: OSHA Reverses Course on Work-Relatedness

By Conn Maciel Carey’s COVID-19 Task Force

There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions the past three months is the requirement to record on an OSHA 300 Log and/or pick up the phone and report to OSHA work-related cases of COVID-19.  This article explains the circumstances the OSHA recordkeeping and reporting obligations related to employee COVID-19 cases.

The Cold and Flu Exemption to OSHA Recordkeeping

By regulation, the common cold and flu are exempt from OSHA’s recordkeeping and reporting requirements (29 CFR Part 1904.5(b)(2)(viii)):

“An injury or illness occurring in the work environment that falls under one of the following exceptions is not work-related, and therefore is not recordable…. The illness is the common cold or flu.”

The rationale for the exemption is that the spread of the cold and flu is so pervasive and potential exposures are ubiquitous within and outside the workplace, so it can be nearly impossible to identify the specific source of infection.

Despite great personal sacrifice around the country in the form of mass self-quarantine, the scale of infection of COVID-19 continues to spread like the flu and common cold, with even more dire consequences.  Nevertheless, OSHA has repeatedly made clear that COVID-19 is not subject to the cold/flu recordkeeping exemption:

“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”

OSHA has explained that the cold and flu recordkeeping exemption is not just an OSHA policy or enforcement philosophy.  Rather, it is a part of the regulation itself that went through APA notice-and-comment rulemaking.  And the scientific reality is, COVID-19 is not the cold or flu.  It is a different virus.  So without another rulemaking (that history suggests would take longer than it will to eradicate this illness), OSHA cannot just declare this serious illness to be exempt from recordkeeping and reporting requirements.

Indeed, over a series of guidance documents in April and May, OSHA has doubled-down on its decision that employers must spend time determining whether cases of COVID-19 are more likely than not work-related.

Determine Recordability of COVID-19 Cases

Consistent across all of OSHA’s COVID-19 guidance has been the basic structure for evaluating whether an employee’s COVID-19 case is recordable.  Employers will only be responsible for recording a case of COVID-19 if it meets the following criteria: Continue reading

Cal/OSHA Guidance Regarding COVID-19 in the Workplace

By Andrew Sommer, Megan Shaked, and Beeta Lashkari

Last week, Cal/OSHA updated its website, providing additional guidance on how to protect Californian employee from spread of COVID-19 in the workplace.  Additionally, earlier this week, Division Chief Doug Parker sent an unpublished letter, clarifying Cal/OSHA’s recording/reporting requirements for coronavirus-related illnesses.  Below is a summary of both pieces of guidance from Cal/OSHA:

Additional Cal/OSHA Guidance on COVID-19 in the Workplace

Starting with the new guidance on its website, Cal/OSHA provided additional information on how to protect workers from COVID-19.  While Cal/OSHA previously issued guidance on requirements under its Aerosol Transmissible Diseases (“ATD”) standard specific to COVID-19, as well as general guidelines, it has now released industry-specific guidance and ATD model plans.  The industry-specific guidance includes:

The ATD model plans are fillable pages provided in Word format and include an exposure control plan, laboratory biosafety plan, and “referring employer” model written program.

Picture1As general guidance, Cal/OSHA’s website also includes interim guidelines for general industry on COVID-19.  These interim guidelines make clear that, for employers covered by the ATD standard, employers must protect employees from airborne infectious diseases such as COVID-19 and pathogens transmitted by aerosols.  The ATD standard applies to:

  1. hospitals, skilled nursing facilities, clinics, medical offices, outpatient medical facilities, home health care, long-term health care facilities, hospices, medical outreach services, medical transport and emergency medical services;
  2. certain laboratories, public health services and police services that are reasonably anticipated to expose employees to an aerosol transmissible disease;
  3. correctional facilities, homeless shelters, and drug treatment programs; and
  4. any other locations when Cal/OSHA informs employers in writing that they must comply with the ATD standard.

Additionally, for employers NOT covered by the ATD standard, Cal/OSHA advises employers to Continue reading

REMINDER: Feb. 1st Deadline to Certify and Post OSHA 300As: Four Common Mistakes Employers Make

By Eric J. Conn

Check out an updated 2020 version of this article here.

This is your annual reminder about the important annual February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is for the set of low hazard industries exempted from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

This February 1 requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, is a new requirement for certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through a web portal.  Depending on how OSHA resolves an internal policy debate and the outcome of legal challenges from labor groups, that data may also be shared publicly.

By February 1st every year, employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Log are complete and accurate;
  • Correct any deficiencies identified on the 300 Log;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
  • Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a RK 2summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Four Common 300A Mistakes that Employers Make

We see employers make the following four common mistakes related to this annual injury and illness Recordkeeping duty: Continue reading

State Plan Implementation of OSHA’s E-Recordkeeping Data Submission Rule

By Eric J. Conn and Dan C. Deacon

OSHA’s Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires employers of  certain sizes that fall into certain categories to proactively submit electronic injury and illnesses data to OSHA through its new web portal – the “Injury Tracking Application.”  The new rule dramatically changes the responsibilities and impacts of OSHA’s long-standing injury and illness recordkeeping program.RK Fact Sheet

Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer to participate in its annual injury data survey, employers’ OSHA 300 Logs and related forms remained strictly in-house. Employers kept the data and their OSHA logs in their HR or Safety Department office, posted them internally for employees to view for a couple of months, used the data themselves to make decisions about how to reduce risk of injury and illness in their workplaces, and then stored the records in a cabinet or desk drawer for five years.  Now, OSHA’s new rule requires hundreds of thousands of employers to proactively submit these historically private records to OSHA, which in turn may publish the data online for all the world to see.

Key Changes in OSHA’s New Recordkeeping Rule

  1. All establishments with 250 or more employees (in industries not exempt from keeping injury logs) must submit to OSHA annually their injury and illness data from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
  2. Establishments with 20-249 employees in certain so-called “high hazard industries” must each year submit information from their 300A Annual Summaries only.
  3. All of the submissions to OSHA must be made electronically, via a purportedly secure website.
  4. OSHA stated its original intent was to publish the data online, likely in a manner that is sortable, searchable, filterable, and as embarrassing to employers as possible.

Note however, in this first year of the rule, for the upcoming data submission of 2016 injury data to be made in calendar year 2017, all employers, irrespective of size, are only required to submit 300A Annual Summary data.

Deadline to Submit Data – A Moving Target

The deadline to submit data has been a topic of discussion, and there remains some uncertainty whether employers will be required to electronically submit injury and illness data.  Continue reading

Get the Record Straight: Latest on OSHA’s E-Recordkeeping and Anti-Retaliation Rule [Webinar Recording]

On May 16, 2017, Amanda R. Strainis-Walker and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group, presented a webinar regarding OSHA’s E-Recordkeeping and Anti-Retaliation Rule.”  Here is a link to a recording of the webinar.
OSHA’s controversial new Electronic Injury and Illness Recordkeeping data submission rule, along with its new Anti-Retaliation elements has thus far survived a barrage of negative stakeholder comments during the rulemaking, multiple enforcement deferrals, and a legal challenge complete with a preliminary injunction motions, and continuing legal challenges.  As of today, all elements of the rule are in effect, including limits on post-injury drug testing and safety incentive programs, and barring a change before July 1, 2017, thousands of employers will, for the first time, be required to submit injury and illness recordkeeping data to OSHA, possibly for publishing online.

Participants in this complimentary webinar learned about:

  • Requirements of OSHA’s Electronic Injury Recordkeeping data submission
  • The status of OSHA’s new database to receive injury data
  • OSHA’s policy on publishing the injury data received from employers
  • The Anti-Retaliation Elements of the E-Recordkeeping Rule
  • The status and future of this new Final Rule
  • The fate of “Volks” Recordkeeping Statute of Limitations Rule

This was the fifth webinar event in Conn Maciel Carey’s 2017 OSHA Webinar Series.  Plan to join us for the remaining complimentary monthly OSHA webinars.  Click here for the full schedule and program descriptions for the 2017 series, and/or to register for the entire 2017 series, click here to send us an email request, and we will get you registered.

If you missed any of our prior webinars in the 2017 or past years’ OSHA Webinar Series, here is a link Conn Maciel Carey’s Webinar Archive.

Get the Record Straight: OSHA’s New Injury Recordkeeping E-Submission Rule [Webinar Recording]

On June 7, 2016, Eric J. Conn and Amanda Strainis-Walker of Conn Maciel Carey’s national OSHA Practice presented a webinar regarding OSHA’s New Injury Recordkeeping Data Electronic Submission Rule as part of the Firm’s 2016 OSHA Webinar Series.

 As the clock winds down on the Obama Administration, OSHA has been rushing out a series of proposed amendments to its Injury & Illness Recordkeeping regulations (29 C.F.R. Part 1904).  Among them is a new final rule to “Improve Tracking of Workplace Injuries and Illnesses,” which will require hundreds of thousands of employers to electronically submit their injury and illness logs (and in many instances, their detailed incident reports also) each year.  More importantly, for no apparent safety reason, OSHA intends to publish employers’ injury data and incident reports online.

Another rule working its way through the rulemaking process: “Continuing Duty to Maintain Up-to-Date and Accurate Injury & Illness Records,” would impose a continuing duty on employers to update and maintain

Continue reading