b'Garys Corneremployer by employees, as well as information anrelatedness determination was made.But, OSHA employer learned regarding its employees healthannounced that it will also look at information that the and safety in the ordinary course of managing itsemployer learned later (after the work-relatedness business and employees). determination was made) to assess whether the In practice, this meant that an employer wasemployers determination was reasonable.This not required to undertake an extensive inquiry intoMonday-morning quarterbacking by OSHA places a the potential work-relatedness of an employeesburden on employers to revisit the work-relatedness COVID-19 and could rely upon objective informationdetermination of COVID-19 cases that were not that was reasonably available to it. Unless the causalrecorded if subsequent information suggests that link between COVID-19 and the workplace becamethe case should have been recorded.known to the employer through the normal courseOSHA outlined the types of evidence that would of operating the business, the employer was notweigh in favor of a COVID-19 case being work expected to record the case. related, stating that cases are likely work related However, OSHA has announced that it will nowwhen several cases develop among workers who enforce 29 CFR 1904 with respect to employerswork closely together; if contracted shortly after across all industries, and has issued new guidancea lengthy and close exposure to a customer or that raises the bar for employers investigating thecoworker who has the virus; or if the employees work-relatedness of COVID-19 cases. job duties involve frequent and close exposure to the general public in a locality with ongoing community Effective May 26, 2020, employers must make atransmission, and if there is no alternative explanation reasonable determination as to the work-relatednessother than workplace exposure.OSHA stated that of employee COVID-19 cases. Now, employers mustit would also Give due weight to any evidence of take affirmative steps to question employees withcausation, pertaining to the employee illness, (sic) confirmed cases of COVID-19, rather than simplyat issue provided by medical providers, public health relying upon information that the employer couldauthorities or the employee themselves.learn through the regular course of managing theOn the other hand, OSHA acknowledges that an business.To make a reasonable determination,employees COVID-19 illness is likely not work-related employers should (1) Ask the employee how heif the employee is the only worker in his work area believes he contracted the COVID-19 illness; (2)to contract the virus; his job duties do not include while respecting the employees privacy, discussfrequent contact with the general public; or if the with the employee his work and out-of-work activitiesemployee, outside of work, closely associates with that may have led to the COVID-19 illness; andsomeone who has COVID-19.(3) review the employees work environment for potential SARS-CoV-2 exposure, keeping in mindLast, OSHA clarified that employers must evaluate any other workers in the same environment whothe work-relatedness of each case using a more have contracted COVID-19. OSHA cautions thatlikely than not standard.OSHA stated, If, after the employers,andparticularlysmalleremployers,reasonable and good faith inquiry described above, should not be expected to undertake extensivethe employer cannot determine whether it is more medical inquiries, given employee privacy concernslikely than not that exposure in the workplace played and most employers lack of expertise in this area.a causal role with respect to the particular case of So the reasonable determination is modified by theCOVID-19, the illness is not recordable.In other ability of the employer to obtain information whilewords, a mere possibility that the exposure occurred pursuing the steps enumerated in this paragraphin the workplace does not make a case recordable. in light of the caution regarding employee privacyIt remains to be seen whether this new guidance concerns and the recognition that most employersends up being a distinction without a difference, as do not have expertise in these areas. many employers are already investigating employee In addition to questioning employees, OSHA willCOVID-19 cases to protect their other employees and continue to look at information that was reasonablycomply with various state government directives.But, available to the employer at the time the work- in the event OSHA pays a visit, employers should Continued on page 16www.mrca.orgMidwest Roofer 15'