OSHA Issues Guidance On COVID-19 Recordkeeping, Work-Relatedness Determinations

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Recognizing the difficulty in assessing whether an employee contracted COVID-19 at work, OSHA released interim guidance on April 10, 2020 for how it will enforce its recordkeeping requirements. This guidance should be of interest to employers who are grappling with whether or not they should record COVID-19 cases on their OSHA 300 log.

As a starting point, the guidance confirms that COVID-19 is a recordable illness and employers are responsible for recording cases on their OSHA 300 logs if three conditions are met:

  1. The case is a confirmed case of COVID-19, as defined by the CDC
  2. The case is work-related as defined by 29 CFR § 1904.5 (generally, an event or exposure in the work environment caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness)
  3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7 (generally, if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness, or otherwise involves a significant injury or illness diagnose by a physician or other licensed healthcare professional).

The guidance goes on to recognize that employers of workers in professions that are widely recognized as particularly susceptible to transmission of COVID-19 (i.e., healthcare industry, emergency response organizations, and correctional institutions), must continue to make work-relatedness determinations as outlined above.

However, until further notice, the guidance states OSHA will not enforce the work-relatedness determinations for other employers, unless two conditions are met:

  1. There is objective evidence that a COVID-19 case may be work-related (as an example, OSHA explains such objective evidence could include a number of cases developing among workers who work closely together without an alternative explanation)
  2. The evidence was reasonably available to the employer (as an example, employees provide the information/evidence to the employer, or information the employer learns regarding employee health and safety in the ordinary course of managing its business)

In sum, it appears the guidance is intended to allow employers in non-high risk professions to continue to focus their efforts on preventing the spread of COVID-19 at the workplace (i.e., enforcing social distancing protocols, practicing good hygiene, etc.), instead of also worrying about whether they must spend time and resources focusing on whether the employee contracted COVID-19 while performing work-related activities.

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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