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OSHA Revises Stance on COVID-19 Record-Keeping and Enforcement

Posted on July 1, 2020 by Paul Jacobson

The Occupational Safety and Health Administration (OSHA) recently issued two enforcement memos regarding COVID-19. The first of these memos revised OSHA’s requirements for employers as they determine whether individual cases of COVID-19 are work-related. The second revised OSHA’s policy for handling COVID-19-related complaints, referrals, and severe illness reports. The changes in these revisions include:

Record-Keeping and Reporting

OSHA’s position for months has been that cases of COVID-19 are subject to record-keeping and reporting requirements if they are work-related. On May 26, 2020, OSHA’s new memorandum superseded the previous April 10, 2020 memorandum on the subject of work-relatedness.

The April 10 memorandum essentially provided most employers latitude to assume that cases of COVID-19 were not work-related, absent evidence to the contrary. The May 19 memorandum revises OSHA’s position, requiring employers to investigate COVID-19 cases more heavily before concluding whether they are work-related.

The primary thrust of the agency’s revised position is that OSHA enforcement officers should consider three primary factors when evaluating whether an employer’s determination of work-relatedness was reasonable:

The reasonableness of the employer’s investigation into work-relatedness;
The evidence available to the employer; and
The evidence that a COVID-19 illness was contracted at work.

Regarding the first, OSHA stated that it is sufficient in most circumstances for an employer, when it learns of an employee’s COVID-19 illness, to (1) ask the employee how he or she believes they contracted COVID-19; (2) while respecting employee privacy, discuss with the employee his or her work and out-of-work activities that may have led to the COVID-19 illness, and (3) review the employee’s work environment for potential COVID-19 exposure.

Employee privacy rights are a potential trap for unwary employers when inquiring about exposure outside of the workplace. Such discussions could implicate a variety of employment laws, including state-specific laws.

Regarding the second factor, OSHA directed employers to consider the evidence “reasonably available” at the time they makes their work-relatedness determination. If employers later learn more information related to an employee’s COVID-19 illness, then employers shall also consider that information.

OSHA elaborated on the third factor by listing certain types of evidence that weigh in favor of or against work-relatedness. For example, OSHA stated that COVID-19 illnesses are likely work-related when several cases develop among employees who work closely together and there is no alternative explanation. OSHA also stated that an employee’s COVID-19 illness is likely work-related if it was 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.

OSHA justified its revised position on work-relatedness by stating that the nature of COVID-19 and the ubiquity of community spread frequently make it difficult to accurately determine whether a COVID-19 illness is work-related, especially when employees have experienced potential exposure both in and out of the workplace. OSHA might also have been motivated by some organizations calling for it to take a more aggressive response to COVID-19.

Complaints, Referrals and Illness Reports

The second memo, also issued on May 19, 2020, was related to complaints, referrals, and severe illness reports. Specifically, in geographic areas where community spread of COVID-19 has significantly decreased, OSHA will return to its normal pre-COVID-19 methods for prioritizing reported events for inspections.

OSHA will continue to prioritize cases of COVID-19 to some degree, but will increasingly conduct these efforts by phone or other remote methods. In geographic areas experiencing either sustained elevated community transmission or a resurgence in community transmission, OSHA will continue to heavily prioritize COVID-19, including conducting on-site inspections, especially in high-risk workplaces.

Action Items and Final Takeaways

OSHA’s enforcement approaches regarding the COVID-19 pandemic continue to evolve. The agency will likely continue to closely monitor employers’ compliance with COVID-19-related requirements even after states and localities lift stay-at-home orders.

Professionals with questions on how OSHA’s recent enforcement policies affect a business or organization should consider consulting with legal counsel. Also, OSHA distributes by email an informative twice-monthly newsletter called “QuickTakes,” open for subscription. OSHA’s regulations on injury and illness recordkeeping and reporting, found at 29 C.F.R. Part 1904, also include helpful questions and answers about these topics.

Finally, employers should bear in mind that the negative consequences of choosing not to comply with OSHA’s record-keeping and reporting requirements often outweigh the potential negative consequences of bringing injuries and illnesses to OSHA’s attention.

Preventing Paycheck Protection Program Loan Scams

Posted on June 22, 2020 by Adam Jacobson

The COVID-19 pandemic and subsequent shutdowns have meant perilous times for small businesses across the country, with many shutting down temporarily or even permanently. As part of the U.S. government’s efforts to forestall bankruptcies and layoffs, Congress allocated hundreds of billions of dollars for the Paycheck Protection Program (PPP). Small businesses can apply for loans from the U.S. Small Business Association (SBA), which the SBA will forgive if the receiving business meets certain criteria, like “if all of the company’s employees are kept on the payroll for eight weeks and the money from the loan is used to pay for rent, mortgage interest, utilities or payroll.”

The program has helped many businesses, but also left many stranded and desperate when they could not qualify for the loans. According to the Wall Street Journal, as of this week, the government has disbursed “4.6 million loans worth more than $513 billion.” But some businesses were forced to return the funds when they discovered they could not open soon enough to meet the eight-week deadline, and some did not even bother applying because they did not meet the criteria. The program has also faced criticism for not providing enough funds, and when larger and/or publicly traded companies (like restaurant chain Ruth’s Chris) received loans.

As with many other government programs that award payouts and may have confusing or labyrinthine application and approval processes (such as Social Security payments or tax refunds), scammers have targeted desperate businesses trying to access PPP funds. Online identity verification service Social Catfish recently published guidelines for avoiding PPP-related scams that small businesses are facing, including phishing and robocall scams.

As Risk Management recently reported, phishing scams—in which criminals use fraudulent emails to trick users into clicking malicious links or divulging sensitive personal information—have proliferated since the start of the COVID-19 pandemic, often specifically targeting pandemic-related concerns. According to Social Catfish, online scammers have been using emails posing as the SBA inviting the recipient to apply for a PPP loan, then installing malware or stealing any information provided. With this information, scammers can then pose as a business to apply for loans or steal funds.

Scammers may also try to contact businesses by phone, either in person or by robocall, asking for confidential information or demanding a fee for their PPP application, even promising faster processing after the payment. Similar to the IRS, the SBA does not call PPP applicants for information, and there are no fees associated with PPP applications. Businesses applying for PPP loans may also encounter fake companies claiming that they facilitate applications, which scammers then use to steal the confidential information victims provide.

To avoid being scammed, Social Catfish recommended that businesses interested in applying for PPP loans do their due diligence by following the steps below:

Don’t pay for a PPP Loan application. The SBA doesn’t require payment to fill out and submit a PPP Loan application. If someone is charging you to fill out an application, chances are its a scam.
Don’t give your information in response to any suspicious email, text, or phone call. The SBA will not email you out of the blue to fill out a PPP Loan application. If someone is emailing you out of the blue to fill out an application and to give them your information, chances are they are trying to scam you.
Verify the lender before applying for the loan. Only lenders approved by the SBA can administer PPP Loans. To find out if the lender you are applying with is approved to distribute PPP Loans, click here.
Don’t click on links in emails. The links in the emails are often filled with viruses and malware that will infect your computer and steal your personal information. They also spoof the application so that you’ll have to give out your personal or business’ confidential information.
Don’t reply back to any text or email you don’t know. Replying back to them with your personal or company’s confidential information may lead to you getting scammed. The SBA will not email you encouraging you to apply for the loan, you would have to look for the loan yourself.

Supreme Court Affirms LGBTQ+ Workplace Rights

Posted on June 18, 2020 by Adam Jacobson

In a 6-3 decision this week, the U.S. Supreme Court ruled that federal anti-discrimination laws cover LGBTQ+ people and that they cannot be legally fired for their sexual orientation and gender identity, ensuring protection under Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch wrote in the majority opinion that, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The decision was based on two separate cases brought before the Court. In 2013, Aimee Stephens was fired from her job as a funeral home director when she revealed her gender identity to her colleagues. Her former boss testified that he had fired Stephens based on the fact that she was “no longer going to represent himself as a man.” The case was the first before the Supreme Court regarding transgender rights. The second case was that of Gerald Bostock and Donald Zarda, who claimed that they were fired from their jobs as a child welfare services coordinator and a skydiving instructor, respectively, for being gay. Both Stephens and Zarda passed away before seeing their cases decided by the Supreme Court.

According to an April 2020 report from UCLA School of Law’s Williams Institute, 8.1 million LGBT workers age 16 and older live in the United States, and before the Court’s ruling, 3.9 million lived in the 28 states where it was legal to fire someone based on their sexual orientation or gender identity. In 2019, the U.S. Equal Employment Opportunity Commission (EEOC) brought more than 1,800 charges of LGBT-based workplace sex discrimination. Additionally, a 2017 survey showed that 20% of LGBTQ Americans reported facing discrimination when applying for a job, and 22% were not paid equally or promoted at the same rate as their colleagues who were heterosexual and cisgender. Advocacy organization Out Leadership also reported that, in 2020, “less than 0.3% of Fortune 500 board directors” were openly LGBTQ+.

These factors contribute to workplaces where LGBTQ+ workers do not feel comfortable being themselves, and are more likely to leave, according to Human Rights Campaign (HRC). A 2019 HRC report noted that 46% of LGBTQ+ workers had hidden their sexual preference and/or gender identity at work, and 10% had left jobs because their workplace did not accept LGBTQ+ people.

In the article “The Benefits of Diversity & Inclusion Initiatives,” Risk Management reported that encouraging diversity and inclusion helps all workers and their organizations. Allowing employees to bring their whole selves to the task can be beneficial. As the articled noted, “Often, the outsider believes he or she must bend to the norms of this dominant culture. When this occurs, it mutes creative friction—or creative abrasion, as it is also called—wherein ideas can be challenged productively.” D&I initiatives can encourage employees to more freely innovate and collaborate, can help boost worker retention, and may help minimize the risk of discrimination lawsuits.

But these programs may not be enough to create a working environment that is free of bias and discrimination. Even when companies “fostered an inclusive workplace,” 64% of employees in a 2019 Deloitte survey said that they had experienced or witnessed workplace bias in the past year, and over 50% of LGBT respondents experienced bias at least once a month. Employers can work to address the specific concerns of their LGBT+ workers, including allowing transgender employees to use bathrooms that correspond to their gender identity, regularly updating and reassessing company policies and requiring all employees to review them, and making clear that any form of workplace discrimination is unacceptable and will incur consequences.

Some legal experts worry that workplace discrimination will still take place under the guise of other factors like performance, noting that discrimination based on sexual preference and gender identity is very difficult to prove. The Supreme Court’s decision also left open the possibility that employers could still use a religious exemption to discriminate against LGBTQ+ workers. However, the decision is a critical step forward for LGBTQ+ civil rights and an important moment for workplace diversity and inclusion.

Black Lives Matter: Taking Action on Diversity and Inclusion

Posted on June 9, 2020 by Hilary Tuttle

As protesters across the United States call out systemic racism and police violence against Black people, and Pride Month honoring the LGBTQ+ community begins, diversity and inclusion issues are—and should be—drawing headlines and dominating conversations around the world.

RIMS CEO Mary Roth and 2020 President Laura Langone released a statement Friday saying:

“To the Black members of our community, we cannot fully appreciate how pained you must be by not only this most recent act—but by all acts that reflect bigotry and hatred in our nations’ communities. What we can do is accept the responsibility to ensure that RIMS community reflects something different. Let us be clear: RIMS does not tolerate any form of racism or discrimination in our global community. And we will always look for ways to improve.”

The editors of Risk Management and the Risk Management Monitor echo this message and stand with our Black colleagues, RIMS members and the Black community at large.

As we all look to support, advocate, learn and do better, we have compiled a list of resources to help, including industry advocacy groups for Black risk and insurance professionals, as well as resources for strengthening your organization’s policies, procedures and diversity and inclusion programs. You can also review selections from our previous coverage of diversity and inclusion below:

Industry Advocacy Groups and Research

National African American Insurance Association (NAAIA)

International Association of Black Actuaries

REPORT: The Journey of African American Insurance Professionals, from Marsh and NAAIA

For public sector risk professionals:

The Government Alliance on Race and Equity (GARE)

National Forum for Black Public Administrators

From ICMA, the association for professional city and county managers: WEBINAR: Sharpening the Focus on Social Equity to Make Strategic Budget Decisions

ARTICLE: Silence Is Complicity: Can White America Demonstrate that Black Lives Matter?

Diversity and Inclusion Resources

Global Diversity and Inclusion Benchmarks, Standards for Organizations Around the World, from the Centre for Global Inclusion

The Diversity & Inclusion Revolution, Eight Powerful Truths, from Deloitte