UPDATED: OSHA Recording Requirements for Work-Related COVID-19 Cases

On May 19, 2020 OSHA issued Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), requiring all covered employers to make “a reasonable determination of work-relatedness” as to confirmed cases of COVID-19 in its workforce. The previous guidance, which required determining work-relatedness only in certain industries (health care, emergency response, or correctional institutions) or under certain circumstances, will be rescinded on May 26, 2020, and the revised guidance will go into effect until further notice.

The revised guidance states that COVID-19 is a recordable illness, and employers are responsible for recording a case of COVID-19 in its OSHA logs, if it:
 

1. is a confirmed case (meaning, an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19);
2. is work-related (an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness); and
3. meets the regular recording criteria (death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or significant injury or illness diagnosed by a physician or other licensed health care professional).

The previous guidance had not required most employers to investigate and make a determination of the second factor, work-relatedness, unless there was reasonably available, objective evidence of work-relatedness (such as a cluster of cases among employees working closely together without alternative explanation). OSHA attributes its change in course to incidences of positive cases throughout the country; outbreaks in industries other than in health care, emergency response, or correctional institutions; adaptation to new ways of protecting employees and doing business; and the general return of the workforce at large. Given these factors, OSHA states, “Employers should be taking action to determine whether employee COVID-19 illnesses are work-related and thus recordable.”
 
Even so, the agency acknowledges, “Given the nature of the disease and ubiquity of community spread, however, in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” Accordingly, the revised guidance includes enforcement discretion that takes into account an employer’s efforts to make reasonable work-relatedness determinations, applying the following considerations (as quoted directly from the guidance):
 

• The reasonableness of the employer's investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee's COVID-19 illness: (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his 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 SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.
• The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee's COVID-19 illness, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.
• The evidence that a COVID-19 illness was contracted at work. CSHOs [OSHA’s compliance officers or investigators] should take into account all reasonably available evidence, in the manner described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:
  • 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 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 she is the only worker to contract COVID-19 in her vicinity and her 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 he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
  • CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.

OSHA concludes these considerations with the following: “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”

However, employers should note that even if they do have to record a case as work-related, “Recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.” As the revised guidance concludes, “In all events, it is important as a matter of worker health and safety, as well as public health, for an employer to examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.”
 
Note: Employers with 10 or fewer employees and those in specific “low hazard industries” are not required to maintain OSHA logs and record work-related injuries and illnesses.  However, such employers must still report any work-related COVID-19 illnesses that result in a fatality or an employee's in-patient hospitalization, amputation, or loss of an eye.
 

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On April 10, 2020 OSHA issued new interim guidance to its Compliance Safety and Health Officers (CSHOs) for enforcing the recordkeeping standards (29 CFR Part 1904) of the federal OSHA Act. Under the new guidance, employers, other than those in the health care industry, emergency response organizations, or correctional institutions, may not be required to investigate and determine work-relatedness and record employee COVID-19 cases in their OSHA logs except under certain circumstances.

The guidance begins with the premise that COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if it is a confirmed case that is work-related and meets the regular recording criteria (death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or significant injury or illness diagnosed by a physician or other licensed health care professional).

However, the guidance continues, in areas with ongoing community spread many employers “may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.” Accordingly, OSHA is exercising its enforcement discretion “to provide certainty to the regulated community,” as follows:

Employers of workers in the health care industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904. Until further notice, however, OSHA will not enforce 29 CFR § 1904 to require other employers to make the same work-relatedness determinations, 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. For purposes of this memorandum, 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.

The rationale for the guidance is that it will “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.”

Importantly, the guidance does not provide a complete reprieve from recording positive employee COVID-19 cases, as is done with the common flu. Employers with “objective evidence” reasonably available to them of work-relatedness of such cases must still record the cases. However, OSHA will not require investigation and determination of work-relatedness in all cases. Employers should still record cases where they are aware or learn of circumstances providing objective evidence of work-relatedness that do not have alternate explanations.

The guidance is intended to be limited to the current public health crisis.
 

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OSHA maintains a COVID-19 page on its website providing information on the virus and various OSHA standards and directives that may be implicated by employee exposure to COVID-19. On its “Standards” page, found here, OSHA lists various potentially relevant standards, including its occupational injury and illness recordkeeping requirements found at 29 CFR 1904. This standard requires covered employers to record certain work-related injuries and illnesses. The “common cold and flu” are exempt from these recording requirements and do not have to be recorded on an employer’s OSHA 300 log. However, certain other illnesses, such as “tuberculosis, brucellosis, hepatitis A, or plague,” must be recorded as work-related if the employee is infected at work. In this regard, OSHA has taken the position that COVID-19 should be treated, for recording purposes, like these other illnesses and not like the common cold or flu. Here is the full substance of OSHA’s statement on the subject:
 
In determining work-relatedness, the applicable standards provide the following guidance:
 
So, employers are directed to determine whether something in the work environment either caused or contributed to the employee’s infection with COVID-19. Obviously, in many work settings this may be difficult, if not impossible, to determine. In other work settings, such as in health care where exposure to COVID-19 patients occurs, there may be more direct reason to believe the illness is recordable. According to an OSHA standard interpretation letter from 2016 on an unrelated topic, the employer’s duty in such situations is as follows: “The employer has the ultimate responsibility for making good-faith recordkeeping determinations regarding an injury and/or illness. Employers must decide if and how a particular case should be recorded and their decision must not be an arbitrary one.” For now, that is probably the clearest guidance we will have on the subject.

The issue is further complicated for employees who travel. Here is what the standards have to say on this topic:
 
However, there are recording exceptions for travelers when the illness or injury occurs when the employee has “checked into a hotel or motel for one or more days,” which effectively becomes their residence, or when the employee has taken a side trip for personal reasons. Again, it will be difficult to determine whether such an exception would apply. One final issue will be determining recordability when the employee is working from home:
 
It would seem from this explanation that unless the illness resulted from some exposure by a work-related vector, such as contaminated work documents or materials, as opposed to exposure to an ill family member, it would not be recordable.

Again, in all of these circumstances, determining when and where the employee contracted the illness may be difficult, but it is a determination the employer must consider when an employee is diagnosed with COVID-19.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.