Revised enforcement guidance from the Occupational Health and Safety Administration (OSHA) directs employers to record when certain employees contract COVID-19. This is a change from April guidance that did not require employers to record this information.

The May 19, 2020 guidance, which took effect May 26, modifies the record-keeping rule to require employers to track COVID-19 cases, if:

• A case of COVID-19 is confirmed (per CDC guidelines);
• The case is work-related as defined by 29 CFR §1904.5; and
• The case involves one or more of the general recording criteria set forth in 29 CFR §1904.7

Employers that learn an employee has contracted COVID-19 should ask them how they think they contracted the disease (discussing activities both at work and outside of work that may have led to the illness) and should review their work environment. The investigation, especially for small employers, should be reasonable but does not require extensive medical review.

As is often the case when determining whether OSHA regulations require employers to record an employee’s disease, the difficulty is deciding whether the illness is work-related. Factors to consider include: whether multiple employees working closely together become infected; frequent, close exposure to the general public in a locality with ongoing community transmission; and the absence of alternative explanations.

An employer’s workers’ compensation carrier may be a useful resource in analyzing the source of the infection. If the illness is determined to be work-related, it must be reported to the carrier promptly.

While OSHA expects these inquiries regarding the source of the infection, employers should determine whether other applicable laws and regulations in their jurisdiction restrict medical inquiries. For example, under the Americans with Disabilities Act (ADA), employers are required to keep the information obtained in performing this analysis confidential, maintained separately and apart from the employee’s file. To avoid giving any indication that the employee is perceived as disabled ― which could lead to an ADA “perceived as” or retaliation claim in the future ― employers must make it clear to the employee that the inquiry is for the sole purpose of fulfilling the employer’s OSHA obligation to record workplace injuries and illnesses.

An enforcement guidance is not a regulation, but is used by OSHA investigators to evaluate workplace conditions when applying existing regulations. Simply recording the case does not mean there was a violation. Considering that the typical OSHA workplace injury investigation generates more citations for recordkeeping and training violations, than for the accident that caused the investigation in the first place, it is important that employers engage in this evaluation whenever an employee contracts COVID–10.

Additional Information

Full Text: Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)