Determining When a COVID-19 Illness is “Work-Related” and “Recordable” Under OSHA Guidance

Dickinson Wright

Dickinson Wright

With the exception of certain low-risk industries, many employers with more than 10 employees, especially those employers engaged in manufacturing, are required under law to keep a record of serious work-related injuries and illnesses.  In our current climate, questions arise: is COVID-19 a “recordable illness?” And under what circumstances should employers record?

Under its May 19, 2020 Enforcement Memorandum, the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) reinforced its position that COVID-19 is a “recordable illness.” According to the Memorandum, Employers must record cases of COVID-19 if three conditions are met:

  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, as defined by 29 CFR § 1904.5;
  3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1903.7. [Enforcement Memorandum, available here.]

An employer must consider an injury “work-related” if 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.” Id. at n. 3. An employer must consider an injury to meet “general recording criteria,” if, among other things, it results in “death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.” Id. at n. 4.

OSHA acknowledges the difficulty in determining “whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” Id.  To aid employers in determining whether a COVID-19 illness is “work-related” and “recordable,” OSHA has articulated three factors:

  1. The reasonableness of the employer’s investigation into work-relatedness. Here, OSHA expects employers to “ask the employee how he believes he contracted the COVID-19 illness,” “discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness,” and “review[] the employee’s work environment for potential exposure.”
  2. The evidence available to the employer. Here, OSHA notes that employers should look at information “reasonably available to the employer at the time it made its work-relatedness determination.”
  3. The evidence that a COVID-19 illness was contracted at work. Here, OSHA concedes that no “ready formula” exists.  Instead, it asks employers to weigh additional factors to determine if the infection was work-related:

i. COVID-19 illnesses are likely work-related when several cases develop among workers with no alternative explanation.

ii. COVID-19 illnesses may be work-related if the employee contracts it shortly after lengthy exposure to a customer or client with a confirmed case, or contracts it while working in a location in the general public with ongoing community transmission, with no alternative explanation.

iii. In contrast, a COVID-19 illness may not be work-related if the employee is the only worker to contract the illness in her vicinity, and the job duties do not include frequent contact with the general public.

iv. A COVID-19 illness may not be work-related if a close family member or associate of an employee (who does not work for the company) is also infected or potentially infectious.

If an employer undergoes the inquiry above and is unable to determine whether it is “more likely than not” that exposure in the workplace played a causal role in a COVID-19 case, the employer does not have to record the illness.  On the other hand, if, after its investigation, an employer determines that an employee’s COVID-19 illness is, “more likely than not,” “work-related,” it has an obligation to record the incident.


There is no bright-line rule to determine if an employee’s contraction of COVID-19 is “work-related,” and, thus, “recordable.”  Instead, employers must undergo the analysis above to determine if it is “more likely than not” that exposure occurred in the workplace.  As OSHA admonishes, 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.” Ultimately, employers must adhere to their continuing responsibility to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to . . . employees.”  29 U.S.C. § 654(a)(1).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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