COVID-19 has caused a tidal wave of new considerations for companies, causing a wide-ranging ripple effect in the way American businesses operate. Given the projected statistics of the number of Americans who will eventually be infected with the virus throughout the U.S., it is inevitable that many (more) American workers will contract COVID-19. At all times, but particularly during the coronavirus pandemic, employers must remain mindful of OSHA workplace injury and illness recording requirements.
On March 9, 2020, OSHA published its “Guidance on Preparing Workplaces for COVID-19” and also launched an OSHA-specific COVID-19 webpage. The webpage offers a helpful overview of the challenges employers face in maintaining safe workplaces, includes links and references to existing standards that may apply to prevent occupational exposure to COVID-19, and provides reminders concerning OSHA’s standard recording requirements for occupational injuries and illnesses.
Importantly, employers need to know that COVID-19 (unlike the common cold and flu) is not exempted from OSHA recording requirements, and instead will be treated similar to other contagious diseases for purposes of OSHA recording rules.
OSHA directs employers to record cases of COVID-19 only if all the following conditions are met:
- the case is a confirmed case of COVID-19;
- the case is “work-related” as defined by 29 C.F.R. § 1904.5 (discussed in detail, below); and
- the case involves one or more of the “general recording criteria” found in 29 C.F.R. § 1904.7 (injury or illness is recordable if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness or if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional).
This criteria is much the same as OSHA’s general guidelines for recordable events – that is, to be recordable, a fatality, illness, or injury must:
As with other illnesses and injuries, even though an employee’s COVID-19 signs or symptoms might arise while they are at work, if those symptoms “result solely from a non-work-related event or exposure that occurs outside the work environment,” employers are not required to record it.
Given the similarities between the COVID-19 recording criteria and OSHA’s general guidelines for recordable events, the best general practice is for employers to take the same steps for COVID-19 occurrences as employers would take for other workplace injuries or illnesses. However, in light of specific challenges presented by COVID-19, employers will find the following guidance helpful in deciding whether recording is required.
Specific Considerations for Each COVID-19 Recording Criterion
CONFIRMATION OF COVID-19 DIAGNOSIS
OSHA’s guidance issued to date seems to require an actual laboratory-confirmed diagnosis of COVID-19 to satisfy the first requirement. Thus, suspected cases (employees with only signs and symptoms) do not require recording. This is good news for employers, since a recording requirement based on mere suspected cases would be extremely burdensome. Instead, a definitive laboratory confirmation of a COVID-19 diagnosis should be (and, from available OSHA guidelines, is) required to trigger recording duties.
COVID-19 presents a unique and near-impossible challenge to determine whether the virus is “work-related” for purposes of OSHA recording requirements.
OSHA’s standard regulations on the determination of work-relatedness state:
You must consider an injury or illness to be 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. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, [unless an exception applies as listed in 1904.5(b)(2)].
In addition, particularly relevant in this season of remote workspaces, here is OSHA’s regulation pertaining to the determination of work-relatedness for injuries to employees working from home:
Injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.
Further, OSHA’s general regulations provide that recording is not required when an “injury or illness involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment.”
Importantly, though, OSHA has not provided specific guidance on how to classify COVID-19 cases as work-related (which must be recorded) or non-work-related (which is not required to be recorded).
The coronavirus is being described as the “invisible enemy.” Per the CDC, as of April 1, 2020, of the 186,101 known cases in the United States, the sources of 181,863 of those cases are still under investigation. Assuming an employee tests positive for COVID-19, the employee (and thus, the employer) will likely have no idea when, where or how the COVID-19 exposure occurred. This renders the “work-relatedness” criterion virtually impossible to confirm.
Until OSHA provides more guidance and specific instructions on work-relatedness for COVID-19, employers who have an employee with a confirmed COVID-19 diagnosis should document the affected employee’s work duties and environment and, to the extent possible, the employee’s social and family interactions, social encounters, medical history, travel history, etc. The employer may then rely upon this information to analyze in good faith whether “an event or exposure in the work environment either caused or contributed” to the employee’s COVID-19 illness, as required by the OSHA work-relatedness regulation.
GENERAL RECORDING CRITERIA
As stated above, for an illness or injury to meet OSHA’s “general recording criteria” and thus to be recordable, the event must result in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or must involve a significant injury or illness diagnosed by a physician or other licensed health care professional. This is a relatively straightforward analysis for COVID-19. In most instances, if the first requirement (confirmed COVID-19 case) is satisfied, the third requirement (OSHA’s general recording criteria) will also be met. Thus, the virus does not seem to present exceptional issues for this requirement.
Recordkeeping for purposes of OSHA recording in the wake of COVID-19 is an unenviable, but critical, task for employers. Until access to testing increases, meeting the first criterion (a laboratory-confirmed COVID-19 case) may be fairly rare. However, if an employer has an instance in which this requirement is met, determination of the second criterion (work-relatedness) is virtually impossible. On this issue, documentation is key. The third criterion (OSHA’s general recording requirements) will surely be met if an employee has a confirmed COVID-19 diagnosis; thus, the determination of whether to record will ultimately hinge on an employer’s good faith determination of whether the sickness is in fact a “work-related” illness or injury.
We remain on watch in hopes of additional guidance from OSHA pertaining to employer’s recording duties in response to COVID-19.
 29 C.F.R. § 1904.5(b)(2)(viii)
 29 C.F.R §1904.5(b)(2)(ii)
 Work environment is generally defined as the “establishment and other locations where one or more employees are working or are present as a condition of their employment.” See 29 C.F.R. § 1904.5(b)(1).
 29 C.F.R. § 1904.5(a)
 29 C.F.R. § 1904.5(b)(7)
 29 C.F.R. § 1904.5(b)(2)(ii)
 29 C.F.R. § 1904.7(a). Other instances may also meet the general recording criteria; employers should always refer to the actual standards to ensure compliance.