Presented as part of ABA’s BISC & BusMARC 2021 Virtual Safety & Maintenance Series
The American Bus Association’s Bus Industry Safety Council (BISC) and Bus Maintenance Repair Council’s (BusMARC) 2021 Virtual Safety & Maintenance Series offered a sequence of educational webinars early this year, covering a variety of industry-related topics.
As part of their ongoing educational webinar series, the American Bus Association (ABA) hosted a virtual meeting with presenters Jeff Petrunak from the Daecher Consulting Group, Jill Nagy with Summers Nagy Law Offices, and Michelle Wiltgen with National Interstate Insurance.
The webinar addressed COVID-19 as it relates to OSHA record keeping laws, legal updates, and trends. It is presented here, summarized in an abridged format:
Petrunak began the presentation by providing a general overview of OSHA record keeping, its implementation and criteria when reporting COVID-19 in the workplace, and which cases need to be recorded utilizing the following documents:
• OSHA Form 300 – Log of Work-Related Injuries & Illnesses
• OSHA Form 301 – Injury & Illness Incident Report
• OSHA Form 300A – Summary of Work-Related Injuries & Illnesses
When determining whether an injury or illness is work related, OSHA considers how the work environment could cause, contribute to, or significantly aggravate the events or exposures in the workplace.
“OSHA defines ‘workplace’ as the establishment or other locations where one or more employees are working or are present as a condition of their employment,” Petrunak explained. “The work environment includes not only physical locations, but also the equipment or materials used by the employee during the course of his or her work.”
Under OSHA record keeping guidelines, COVID-19 is classified as a recordable illness if it meets at least one of following three criteria: Does the individual have a confirmed positive test? Is the case work-related as defined by OSHA? And does it meet the following general recording criteria?
• Days away from work
• Restricted work or transfer to another job
• Medical treatment beyond first aid
• Loss of consciousness
• A significant injury or illness diagnosed by a physician or other licensed health care provider
Determining Work Relatedness
From a standpoint of the employer or supervisor at your location, what are our obligations to determining work relatedness? According to OSHA guidelines, in most cases, it is sufficient to ask how did he or she believe they came into contact with COVID-19 (with respect to privacy), discuss work and out-of-work activities that may have led to COVID-19, and finally, review the employee’s work environment potential to see if that had a contributing factor to COVID-19.
OSHA will then consider three options: If several cases develop among employees who work closely together, if it is contracted shortly after exposure to a particular customer or coworker who has a confirmed case, or if you have multiple cases within your organization.
If he or she is the only worker to contract COVID-19 in the vicinity on their job duties and do not have frequent contact with the general public – regardless of community spread – it would not be considered a work-related case.
“If you go through these types of cases, you make that good-faith effort to make that determination, and at the end of it, if you don’t think the workplace played that causal role, the employer does not need to report that as an OSHA-reportable COVID-19 illness,” Petrunak said. “However, if we do have an incident, and we make that determination that we do have a work-related COVID-19 case, it is OSHA recordable, and if within 24 hours of that determination, they do have an inpatient hospitalization, then we should report that.”
Employers must report to OSHA:
• All work-related fatalities within 8 hours
• Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA.
• All work-related inpatient hospitalizations, all amputations, and all losses of an eye within 24 hours
Vaccines, Masks, and Reasonable Accommodations
“Last time we did a presentation, we talked a lot about how to prepare for COVID, and how to craft guidance for employees when they might have to leave because of a positive test situation,” Nagy said. “One of the questions we’ve received lot is, ‘Can employers mandate that employees take the vaccine?’”
On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its ongoing COVID-19 guidance addressing mandatory COVID-19 vaccination policies, stating that employers can implement and enforce mandatory COVID-19 vaccination policies for employees, with certain exceptions and caveats.
“If you’re going to go down that path, I suggest a really tight policy,” Nagy said. “If you choose to mandate such a policy, you do have to provide for accommodation for religious or medical issues. The accommodation for someone who can’t get a vaccine is: always wear the mask.”
While not on the general EEOC websites, motorcoach companies are subject to ADA requirements which include a process to provide reasonable modifications to passengers who have issues with masks. If you are going to deny a modification to refuse a mask, you must use the specific reasons in the ADA to deny the request.
According to Nagy, an employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problem.
“These are all things we need to be continuously thinking about,” Nagy said. “It’s going to be ever-changing, especially once folks get the vaccine and they don’t want to wear a mask. These issues are going to be with us for quite some time.”