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Companies Seek Leeway on OSHA Filing Deadlines, Requirements

March 19, 2020, 6:08 PM

Companies across the country are looking for relief from OSHA over filing deadlines, and industry attorneys are asking federal safety regulators for clarification about when to record Covid-19 on illness and injury logs.

In the span of less than two weeks, the Occupational Safety and Health Administration revised its guidance on respirator fit testing, announced that employers must track coronavirus infections incurred in the workplace—unlike cold and flu cases—and issued other guidance on how to manage the global viral outbreak in the workplace.

Businesses are being forced to rapidly move millions of workers to telework and in some cases to shutter completely in response to Covid-19, the disease caused by the new coronavirus. They’re looking to OSHA for more concrete guidance on how to deal with the safety of their workers.

“Employers assuming that exposures occurred at work—for lack of any convincing proof either way—could create confusing data for the future, when those studying this pandemic inevitably will accept those reported workplace exposures as the definitive source of illness,” Avi Meyerstein said in a Wednesday letter to Principal Deputy Assistant Secretary of Labor Loren Sweatt.

Meyerstein, a partner at Husch Blackwell LLP, was seeking clarification and revocation of the recording requirement announced last week, citing the confusion about how to prove whether a worker actually contracted the virus on the job. Husch Blackwell represents several large employers affected by the virus.

OSHA requires businesses to report confirmed cases of Covid-19 that are work-related and meet recording criteria set in the agency’s regulations, such as days away from work or requiring medical treatment beyond first aid. OSHA requires hundreds of thousands of employers with 10 or more workers to keep a log of every workplace injury or illness that requires medical treatment beyond first aid or keeps a worker away from work for at least one day.

No Exceptions

Other industry attorneys said their clients are requesting relief from other paperwork reporting requirements, like the 15-day notice of contest period when an employer is cited by the agency for safety violations.

“We always advise employers that there’s typically no exceptions during emergency situations under OSHA requirements—we’ve found that almost always to be true,” said Rachel L. Conn, an attorney at Nixon Peabody’s Labor & Employment group in San Francisco.

“We’ve seen a little bit of movement from Fed OSHA in relaxing fit testing requirements around N95 respirators given the emergency situation, but without guidance from Fed OSHA, I would assume all other requirements are still in effect,” she said.

Representatives from OSHA didn’t respond to requests for comment. A spokesman for the independent Occupational Safety and Health Review Commission, which hears appeals of safety citations, declined to comment specifically on providing more guidance or pushing back deadlines. But he said the agency’s administrative law judges will be following guidance provided by the U.S. Office of Personnel Management and Office of Management and Budget for adjudicating notices of contests and citations.

Travis Vance, an employment attorney at Fisher & Phillips LLP in Charlotte who heads the firm’s Covid-19 response team, said he’s talked to about 250 clients in the past 14 days about coronavirus concerns. Many are white-collar companies that have never dealt with OSHA before, but are seeking guidance on how to keep their workers safe and to avoid flouting safety regulations in light of the virus.

“OSHA has been reasonable with respect to rescheduling trials coming up in the next month or so,” he said. “As professionals and management side attorneys, we want to keep everyone safe at the end of the day, and in that shared mission we’re working to push back deadlines so we can service clients and respond to their needs.”

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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