OSHA recently announced it will not enforce record keeping requirements for COVID-19 in most industries where there is ongoing community transmission. This announcement reverses previous guidance provided by the agency in March when the agency said COVID-19 transmission in the workplace, unlike the flu or common cold, would be considered a recordable injury.
For employers not involved in healthcare, emergency response (e.g., emergency medical, firefighting and law enforcement services) or operating correctional institutions, and until further notice, OSHA will not be enforcing the requirement that employers perform a work-relatedness determination to assess whether an employee became infected with COVID-19 at work, except where:
1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation, and
2. The evidence was reasonably available to the employer. Examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.
In other words, for most employers, unless there is some “reasonably available” “objective evidence” of work-relatedness (e.g., a high infection rate in a cluster of people who work closely together), and where there is not “an alternative explanation” as to how that group of people may have otherwise become infected, then the infections are not recordable or reportable (in the event of a fatality or hospitalization). Employers who experience “a number of cases developing among workers who work closely together” will need to evaluate available information to determine whether there is objective evidence of transmission in the workplace. Such information should include the timing of the employees’ infections as well as the timing of when those employees worked around or were exposed to one another, work practices and precautions in place during such times, as well as other risk factors of the infected individuals outside of work that might provide alternative explanations for their infections.
Healthcare providers, emergency responders and operators of correctional institutions must continue performing work-relatedness determinations and recording (and possibly reporting) employees’ COVID-19 infections.
This change to OSHA’s recordkeeping and reporting requirements came shortly before OSHA announced its COVID-19 Interim Enforcement Response Plan, which further focused the agency’s investigatory resources on healthcare providers, emergency responders and other high risk employers.
In response to Governor DeWine’s stay at home order and COVID-19 social distancing guidelines, the Industrial Commission is now conducting many hearings by telephone, including hearings involving the following issues: initial allowance of claim, additional allowance, temporary total disability, termination of temporary total disability, wage loss, permanent total, and permanent partial disability. Parties, representatives and counsel have been calling into the IC to participate in telephone hearings, but this has caused delays and confusion. The IC recently adopted new telephone hearing processes and are scheduled to begin on April 27, 2020. The Industrial Commission will provide, on its hearing notices, a telephone number and access code for parties, representatives and counsel to call in order to participate.
The BWC Employer Services Division has announced it will implement two changes in payroll reporting requirements as a result of COVID-19. These changes may impact how you will report payroll for the upcoming (policy year 2019) true-up period:
1. Emergency sick leave and expanded FMLA paid to employees under the Families First Coronavirus Response Act will not be reportable to BWC for premium purposes
2. Employers are permitted to report operational staff currently teleworking (as a result of Governor DeWine’s stay at home order) to class code 8871- Clerical Telecommuter during a declared state of emergency. This will ease the economic impact of the COVID-19 state of emergency on the Ohio business community.
See BWC FAQs page.
Due to the impact of COVID-19, the Ohio Bureau of Workers’ Compensation (BWC) is postponing this year’s biennial open-enrollment period for employers to select a managed care organization (MCO) to medically manage workplace injuries. BWC will continue to publish its annual MCO Report Card, which will be available by the end of April 2020 on BWC’s website.
The Bureau of Workers’ Compensation will send up to $1.6 billion in dividends to Ohio state fund employers to ease the impact of the COVID-19 crisis. The BWC expects it will begin mailing checks to employers in late April 2020. The BWC expects this dividend to equal approximately 100% of the premiums employers paid in policy year 2018. The bureau will apply the dividend to an employer’s outstanding balances first, including the recent installment deferrals. Any amounts exceeding outstanding balances will be sent to the employer. See BWC FAQs page.