OSHA Issues Revised Guidance on Recording Work-Related COVID-19 Cases

On May 19, the Occupational Safety and Health Administration (OSHA) issued revised enforcement guidance clarifying employers’ obligations to record work-related COVID-19 cases during the public health emergency. The enforcement guidance, titled “Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19),” sets forth criteria determining when a case of COVID-19 illness is work-related, and thus recordable.

Under current law and regulations, employers are required to keep a record of serious injuries and illnesses that occur at the workplace (“work-related”) on their OSHA Form 300. OSHA requires employers record an injury or illness within seven days if the injury or illness involves a death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness or if the incident involves significant injury or illness diagnosed by a healthcare professional, even if it does not result in any of the above-listed consequences.

OSHA’s May 19 memorandum provides interim guidance to compliance safety and health officers (CSHOs) on how to enforce recording requirements involving COVID-19. Under the guidance, employers are required to record cases of COVID-19 among their workforce if:

1. the case is a confirmed case of COVID-19;
2. the case is work-related; and
3. the case involves one or more of the general recording criteria outlined above.

Work-relatedness determinations of COVID-19 can be difficult due to the highly contagious nature of the disease, so much so that the agency issued guidance on April 10 instructing CSHOs not to enforce the work-relatedness determination requirements except in cases where there was “objective evidence” that the case may be work-related, and that the evidence was reasonably available to the employer. This guidance was intended to “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects.”

Now, as state and local governments begin to reopen their economies, OSHA has issued its new, revised enforcement guidance largely restoring the work-relatedness determination requirement for employers. The new guidance states that while “employers should be taking action to determine whether employee COVID-19 illnesses are work-related, and thus recordable,” the agency also recognizes that such determinations will remain difficult in certain circumstances. The new guidance clarifies that CSHOs should consider the following when determining if an employer met their obligation to make work-relatedness determinations:

• The reasonableness of the employer’s investigation into work-relatedness — OSHA believes that employers should not be expected to undertake extensive medical inquiries to determine if a COVID-19-positive employee contracted the disease in the workplace. Therefore, OSHA clarifies that it will be sufficient for the employer to ask the employee how they believe they contracted the disease, discuss with the employee (while respecting their privacy) their activities in and out of work, and review the employee’s work environment for possible exposure.
• The evidence available to the employer — OSHA calls on CSHOs to base their compliance determinations on the “information reasonably available to the employer at the time it made its work-relatedness determination.” If the employer learns additional information later on, the new information should be considered as well.
• The evidence that a COVID-19 illness was contracted at work — OSHA instructs CSHOs to consider all “reasonably available evidence … to determine whether an employer has complied with its recording obligation,” but OSHA provides several examples of types of evidence that should be weighed in favor of or against work-relatedness.

If the employer conducts a “reasonable and good-faith inquiry” based on these considerations, and cannot determine if a case was more likely than not caused by workplace exposure, the employer does not need to record the illness. That said, OSHA encourages “employer[s] to examine COVID-19 cases among workers and respond appropriately to protect workers,” regardless if a case is or is not determined to be work-related.

The enforcement guidance went into effect on May 26 and is time-limited to the COVID-19 public health emergency. OSHA clarified that the recording of a COVID-19 illness will not, in itself, be considered a violation of any OSHA standard.

Additional COVID-19-related resources can be found on OSHA’s website.