Martha Zackin

OSHA Reverses Course, Now Requires All Employers to Determine Work-Relatedness of COVID-19 Illness

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On May 19, 2020, the Occupational Safety and Health Administration issued revised guidance for when employers are required to record cases of COVID-19.  As before, COVID-19 is a recordable illness if:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention;
  2. The case is work-related; and
  3. The case involves one or more of the general recording criteria set forth in OSHA regulations.

Until now, however, most employers have not been required to expend significant efforts to determine whether a COVID-19 illness was work-related and, therefore, recordable; only employers of workers in the health care industry, correctional facilities, and emergency-response providers were obligated to make work-related determinations.  For more information about prior OSHA guidance, see our prior Alert.

This will change on May 26, 2020, after which all employers who are required to keep OSHA injury and illness logs must determine if a worker’s confirmed COVID-19 case is job-related.  OSHA recognizes that these determinations may be inherently difficult, stating “Given the nature of the disease and community spread… in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.”  In light of this, OSHA will assess employers’ efforts in making these determinations based on the following criteria:

  • The reasonableness of the employer’s investigation into work-relatedness. Employers will not be expected to undertake extensive medical inquiries.  Rather, it will be sufficient in most circumstances for an employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he or she believes the virus was contracted; (2) while respecting employee privacy, to discuss work and out-of-work activities that may have led to the COVID-19 illness; and (3) to review the employee’s work environment for potential exposure, which should be informed by any other instances of workers in that environment contracting COVID-19 illness;
  • The evidence reasonably available to the employer at the time it made its work- relatedness determination; and
  • The evidence that a COVID-19 illness was contracted at work. Evidence that may weigh in favor of or against a determination that a COVID-19 illness was contracted at work includes:
    • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
    • An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
    • An employee’s COVID-19 illness is likely work-related if his or her job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
    • An employee’s COVID-19 illness is likely not work-related if he or she is the only worker to contract COVID-19 in the employee’s vicinity and job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
    • An employee’s COVID-19 illness is likely not work-related if the employee, outside the workplace, closely and frequently associates with someone (g., a family member, significant other, or close friend) who: has COVID-19; is not a coworker; and exposes the employee during the period in which the individual is likely infectious.

An employer who cannot determine whether it is more likely or not that workplace exposure played a causal role with respect to a COVID-19 illness is not required to record that COVID-19 illness.  Of course, the employer must continue to respond appropriately to protect workers, regardless of whether a case is determined to be work-related.

The revised guidance followed weeks of uncertainty about whether and how employers are required to determine work-relatedness, during which period both employers and workers’ rights organizations have pushed for clarity.

 

Martha Zackin

DOL Expands Industries Eligible for Overtime Exemption for Commissioned Employees

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By Alexandra D. Thaler

On May 18, 2020, the federal Department of Labor, Wage and Hour Division issued a final rule that expands the types of industries that may be able to take advantage of the overtime pay exemption for certain employees paid primarily on a commission basis.  Specifically, the Fair Labor Standards Act (FLSA) includes an exemption from the obligation to pay overtime to employees who work more than 40 hours in a workweek if they work for a “retail or service establishment,” are paid at least 1.5 times the applicable minimum wage, and receive more than half of their total earnings for a representative period in the form of commissions.  The term “retail or service establishment” is defined to mean establishments 75% of whose annual dollar volume of sales of goods or services (or of both) is not for resale and which are recognized as retail sales or services in the particular industry.[1]  Under long-standing Division regulations, some industries were identified as having “no retail concept” (29 CFR § 779.317), and this list was considered in determining which industries could not claim the exemption, while the WHD deemed that others “may be recognized as retail” (29 CFR § 779.320), and therefore could avail themselves of the exemption if the other requirements were established.  Now that the DOL has withdrawn both lists, employers in a wide variety of industries—from accounting firms to laboratory equipment dealers to sign-painting shops to those selling window displays—should consider whether they may fit the definition of “retail or service establishment” and therefore can take advantage of a newfound flexibility in compensation for certain employees.

Over the last eight months, the DOL has issued several new final rules interpreting the FLSA, including:

  • Updating guidance for determining joint employer status (January 16, 2020, available here);
  • Changes to the calculation of the “regular rate” so that certain kinds of compensation no longer have to be factored into an employee’s rate for purposes of determining their overtime rate of pay (December 16, 2019, available here); and
  • And, as we previously explained, updating the earnings thresholds for employees exempt under the administrative, executive, learned professional and “highly compensated employee” exemptions (issued September 24, 2019, effective January 1, 2020, available here).

Of note, the withdrawal made public on May 18th has immediate effect, without any notice and comment period or other delay.

[1] Certain retail or service establishments may be exempt from the FLSA altogether if they do not meet minimum thresholds for sale of goods or services in interstate commerce. 209 U.S.C. § 203(s), 29 CFR § 779.337.