OSHA Strikes Back

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And today, we’re going to be taking a look at some new OSHA updates that have come down the way. So let’s dive right in. So the first thing to know is that during the COVID-19 crisis, OSHA has been heavily criticized for its lack of response, they’ve been considered missing in action by many people who watch the industry. What has happened is that they are now going to start enforcing COVID-19 reporting for all employers across the United States. So as non-essential workplaces have begun to reopen or prepare to reopen across the country, OSHA has updated its guidance to provide for more on-site inspections and enforce record-keeping and reporting requirements against all employers.

This again comes because they’ve been criticized. And so what happened on May 18th is the AFL-CIO largest union in the world, I believe at least the United States sued the agency on May 18th. They asked the DC court of appeals to step in and getting force the OSHA to issue guidance around these topics. On May 19th, the very next day, OSHA issued its Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) that’s linked on our website peopleprocesses.com. If you’re listening to this podcast-only version you need to check it out on there. It goes into effect on May 26th. I’m recording this on May 25th. But I think you probably won’t hear this until about a week later. What happens is that it resets its price version and it provides direct instructions. It’s written for the OSHA inspectors and what they’re supposed to do. It provides instructions for their area offices and what they call their CSA chose their compliance Safety and Health Officers for handling COVID-19. And that’s important because they release it publicly so that we can see what they want us to do.

Primarily, it’s going to increase onset inspections. They updated enforcement guidance. It’s going to increase that inspection in all types of workplaces. The new guidance reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread. The risk of transmission is lower in specific categories of workplaces and PPE (Personal Protective Equipment) that is potentially needed for inspections is more widely available. So OSHA says they can now inspect those things more safely. That’s a problem because originally, they stopped a lot of enforcement because they were afraid they get COVID.

They have also issued new enforcement guidance for recording cases. And this is really the broader key. For those of you who’ve never really dealt with OSHA, this is the bigger deal. Starting May 26th, the revised guidance, again linked on our site, will require employers to record cases of the Coronavirus. If the case is confirmed as Coronavirus is work-related as defined by 29 CFR 1904.5 and involves one or more of the general recording criteria, again in 1904 but it’s not seven. That means medical treatment beyond first aid or days away from work. So, this is the key here, the new thing is that you’re going to have to report COVID-19 cases if they came from work, which is going to be difficult to prove, but it’s gonna be difficult to prove they didn’t as well.

So under the new policy, OSHA is going to enforce those record-keeping requirements for all employee Coronavirus illnesses for all employers. Under the earlier April 10th guidance, record keeping requirements were not required under certain circumstances for employers in the healthcare industry, emergency response organizations, correctional institutions, they’ve removed that. If you’re a home health care agency, this applies to you now. It didn’t before applying to everybody. So, here’s how it breaks out. I went through the whole section of 1904 law. First thing is that you’re exempt if you have fewer than 10 employees. You do not need to keep OSHA injury and illness records unless OSHA tells you otherwise. But it doesn’t matter your size. You must report to OSHA any work-related incidents that result in a fatality or the inpatient hospitalization of one or more employees, amputation, or the loss of an eye. So you don’t have to keep track of every illness. But if someone gets hospitalized inpatient because of that one, you do have to since Coronavirus has at times lead to inpatient hospitalization. This is why I’m bringing this up even for those of you who have two employees. If you had more than 10 employees at any given time, you must keep an OSHA injury and illness record all the time. Unless you’re part of the partially exempt industry list under 1904.2, we’ll get to that at the end. But most or many companies, you have to record every injury but if you have more than 10 employees, unless, you’re on that partially exempt list, we’ll come to that in a second. As a reminder, you have to do this if anyone’s hospitalized.

So let’s recap. OSHA has updated its new enforcement guidance. It’s worth the read if you want to know what they’re going to do when they come to check out your organization. If you have an employee who gets Coronavirus and they allege or you determine that it’s a workplace injury, that they got it from coming to work, you have to record it. You have to report it to OSHA. If you have more than 10 employees and are not on the partially exempt list, or no matter your company size or industry, if it results in a hospitalization you have to keep an injury log and report it. This is different. Coronavirus fell under an exemption similar to the cold and the flu that you didn’t have to report this stuff. But starting on May 26, that’s tomorrow the day after Memorial Day this went into effect. So take a close look and if you don’t know anything about how to do an OSHA report, it may be worth taking a little bit of time to reach out to us. There are actually places in our software for People Processes where you can automatically record these things if you have already HR suite. Of course, you can do this on paper and keep an OSHA log. But this will likely be the first time that small employers or any size employers who are on that partially exempt list that they feel like they’re going to have to do some OSHA reporting. Okay. So I want to bring it up, I wanted you to have the opportunity to kind of know what’s coming and go ahead and get ahead of it. It’s really not that bad. Many companies do OSHA reporting. If you’ve never done one before, it’s a little scary, but it’s not too bad.

When you’re looking at this, the primary question is going to be, “Did the employee contract this illness at work?” So if you are doing daily temperature scans, or you’re in a high-risk industry, let me rephrase that. If you’re in a high-risk industry like if you’re a home healthcare worker, hospice care, long-term care, anything medical, the preponderance of the evidence is going to be that they got it at work. Their likelihood of exposure is that they got it at work and you need to just rock with this. Previously, until this came out on the 19th, you guys were exempt from the OSHA side of this, because you were too busy. They’ve decided you’re not. So if you’re a healthcare professional and one of your employees says they have COVID, you pretty much have to assume they got it from you, and record it and report it.

If you’re not in healthcare, if you’re in a lower risk industry, or there’s actually a very high risk, and then there’s what’s called high risk. High risk or things with a high propensity to contact with other members of the general public. Common examples are things like schools, right, they fall under this. You also pretty much fall under the likelihood that they got it from you. Right? So if you’re a school teacher or a daycare and you’re interacting with lots and lots of children every day, the likelihood is if an employee comes to you and says they have COVID or you discover they have COVID, you have to assume they got from work Again, OSHA reportable now. Lower risk, if you’re a CPA firm and you don’t have much thought, in the way of employee interaction, most employees work from home. The assumption would not necessarily be that they got it. You just need to use your common sense. Of course, provide whatever required leave is there under the FFCRA, those sorts of things but you do not necessarily have to consider it a reportable injury.

Ladies and Gentlemen, that’s it for today. I hope you found this helpful. I hope you found some interesting items. Please check out peopleprocesses.com. Again, on our website, we have information about all these. Going back, we do have our list of partially exempt organizations, if you ever need to look those over, they’re on the link on this podcast site, on the website under this episode. So it’s a worthwhile read to double-check. Make sure you’re on that list. You probably are. If you don’t already know about OSHA reporting, you’re probably on this list. Thank you for tuning in. My name is Rhamy Alejeal, I’m the CEO of People Processes and I appreciate your time. Now it’s time for you to go out there. Have a great day and get your work done.

About the author, Rhamy

Rhamy grew up watching and working with his mother and grandmother in the senior insurance market. This familiarity with the struggles faced by people trying to navigate the incredibly complicated and heavily regulated healthcare market led him to start Poplar Financial while working on his degree at the University of Memphis. After completing his MBA and Bachelors in Finance and Economics, Rhamy guided Poplar Financial through the disruptive opportunity that is the Affordable Care Act. Since then Poplar Financial has received numerous awards from major insurance carriers and has completed its fourth year in a row of doubling in size. Now his team focuses on the processes around human resources and specializes in providing companies with between 20 and 1000 employees with the payroll, benefits, and HR needs.

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