b"OSHA UPDATEOSHA RAISES THE BAR FOR not required to undertake an extensive inquiry into the INVESTIGATING THE WORK- potential work-relatedness of an employees COVID-RELATEDNESS OF COVID-19 CASES19, and could rely upon objective information that was reasonablyavailabletoit.Unlessthecausallinkbetween COVID-19 and the workplace became known OnMay19,2020OSHAonceagaintotheemployerthroughthenormalcourseofreviseditsguidancetoemployers operatingthebusiness,theemployerwasnotconcerning enforcement of the record- expected to record the case. keeping requirements found in 29 CFR 1904, as they pertain to the recordingHowever, OSHA has announced that it will nowof COVID-19 cases. enforce 29 CFR 1904 with respect to employers across all industries, and has issued new guidance FromthestartoftheCOVID-19out- that raises the bar for employers investigating the break in the United States, OSHA haswork-relatedness of COVID-19 cases. statedthatCOVID-19isarecordable illnessandmustberecordedonanemployers300 log, if the following three criteria are met: The employee has a confirmed case of COVID-19, asdefinedbytheCDC(meaningthattheemployeehashadatleastonerespiratory specimen that tested positive forSARS-CoV-2).Effective May 26, 2020, employers must make areasonabledeterminationastothework-Thecaseiswork-relatedasdefinedby29CFRrelatednessofemployeeCOVID-19cases.Now,1904.5; andemployersmusttakeaffirmativestepstoquestionemployees with confirmed cases of COVID-19, rather The illness results in death, days away from work,than simply relying upon information that the employer restrictedworkortransfertoanotherjob, couldlearnthroughtheregularcourseofmanaging medicaltreatmentbeyondfirstaid,lossof the business.To make a reasonable determination, consciousness, or the illness is a significant injuryemployersshould(1)[A]sktheemployeehowhebelieves he contracted the COVID-19 illness; (2) while orillnessdiagnosedbyaphysicianorotherlicensed health care professional.respectingtheemployeesprivacy,discusswiththe employee his work and out-of-work activities that may While the first and third criteria are relatively easy tohave led to the COVID-19 illness; and (3) review the verify, determining the work-relatedness of COVID-19employee's work environment for potential SARS-CoVisparticularlydifficultforemployerswhenthereis-2 exposure, keeping in mind any other workers in the knowncommunityspreadofthevirus.InprevioussameenvironmentwhohavecontractedCOVID-19. guidance, OSHA recognized this difficulty and statedOSHAcautionsthatemployers,andparticularlythat it would not require employers to determine thesmaller employers, should not be expected to under-work-relatedness of a COVID-19 case (and would nottakeextensivemedicalinquiries,givenemployeeenforce 29 CFR 1904) unless: privacyconcernsandmostemployerslackofexpertiseinthisarea.SothereasonableTherewasobjectiveevidencethatacaseofdeterminationismodifiedbytheabilityoftheCOVID-19maybeworkrelated(forexample,aemployertoobtaininformationwhilepursuingthe number of cases developing among workers whostepsenumeratedinthisparagraphinlightoftheworkcloselytogetherwithoutan caution regarding employee privacy concerns and the alternative explanation); andrecognition that most employers do not have expertise in these areas. This objective evidence was reasonably available to the employer (including information given to theInadditiontoquestioningemployees,OSHA employer by employees, as well as information anwillcontinuetolookatinformationthatwasemployer learned regarding its employees healthreasonably available to the employer at the time the and safety in the ordinary course of managing itswork-relatednessdeterminationwasmade.But, business and employees).OSHA announced that it will also look at information thattheemployerlearnedlater(afterthework-Inpractice,thismeantthatanemployerwasrelatednessdeterminationwasmade)toassess Page 14CONSTRUCTION JOURNAL"