The Occupational Safety and Health Administration (OSHA) has ended its suspension of the recordkeeping requirements for coronavirus (COVID-19) cases. Effective May 26, 2020, all employers subject to OSHA’s recordkeeping requirements must resume their obligation to record work-related exposures to COVID-19.
OSHA’s Prior Suspension of its Recordkeeping Requirements for COVID-19 Cases
In its Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), Occ. Safety & Health Admin. (Apr. 10, 2020), OSHA acknowledged the difficulties employers would face when trying to determine whether an employee’s exposure to COVID-19 was work-related and thus recordable. In an effort to “provide certainty to the regulated community and help employers focus their response efforts on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects[,]” OSHA suspended enforcement of its recordkeeping requirements for COVID-19 cases for most employers. Pursuant to that guidance, employers still had to record COVID-19 cases if (1) they had objective evidence that a COVID-19 diagnosis may be work-related and (2) the evidence was reasonably available to the employer.
OSHA’s suspension of the recordkeeping requirements did not apply to healthcare employers, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), or correctional institutions, all of whom had to continue making work-relatedness determinations.
OSHA’s Resumption of Recordkeeping Requirements and Guidance for Employers
Effective May 26, 2020, OSHA will no longer suspend its recordkeeping standard. However, pursuant to its Updated Enforcement Guidance for Recording Cases of Coronavirus Disease (COVID-19) (May 19, 2020), OSHA plans to “exercis[e] discretion to assess employers’ efforts in making work-related determinations.” OSHA will consider the following when making its assessments:
- has COVID-19;
- is not a coworker, and
- exposed the employee during the period in which the individual was likely infectious.
Pursuant to this updated guidance, OSHA will give due weight to any evidence:
- of causation;
- pertaining to the employee illness; and
- provided by medical providers, public health authorities, or the employee.
What Does this Mean for Employers?
According to OSHA, employers who undertake the investigative steps described above but who “cannot determine whether it is more likely than not that” the employee contracted COVID-19 due to a workplace exposure do not need to record the incident. Regardless of whether the exposure was work-related, OSHA reminds employers of their obligations to protect their workforce if an employee has COVID-19.
Based on OSHA’s latest guidance, employers should conduct, to the extent feasible, investigations of COVID-19 cases as described by OSHA. Because OSHA continues to revise and update its guidance as circumstances regarding COVID-19 evolve, employers should also monitor OSHA’s website regularly to stay abreast of the latest developments.