As most employers know, the Occupational Safety and Health Administration (OSHA) requires employers to keep records of all work-related fatalities, injuries and illnesses that meet certain recording criteria. Generally speaking, an injury or illness is recordable if it results in death, time away from work, work restrictions or transfers, loss of consciousness, or if it requires medical treatment beyond first aid or involves a significant injury or illness diagnosed by a physician or other licensed health care professional. These obligations are imposed on most every employer at both the state and federal levels.[1]

As in many other areas, the current coronavirus (COVID-19) pandemic has presented challenges to employers, and understanding how COVID-19 fits within OSHA’s record keeping obligations is no exception. Although various injuries and illnesses are not required to be recorded (e.g., the common cold and seasonal flu), OSHA concluded early on that COVID-19 cases were not exempted from otherwise applicable record keeping obligations.[2]   

That said, OSHA also initially concluded that employers would only be required to record COVID-19 cases where all of the following are true:

1. The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
2. The case is work-related (as defined by 29 CFR 1904.5); and
3. The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (g., medical treatment beyond first aid, days away from work).

Most recently, OSHA modified its enforcement guidelines in recognition of the fact that, for many employers, assessing whether a COVID-19 case is “work-related” may be extremely difficult.[3] Consequently, most employers will not be required to make a formal “work-relatedness” determination and record COVID-19 cases unless: 

1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
2. The evidence was reasonably available to the employer. Examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business. 

Significantly, this enforcement exemption does not apply to employers of workers in the health care industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services) and correctional institutions. These employers will continue to be required to make “work-relatedness” determinations and to record COVID-19 cases as required under applicable law. The agency’s reasoning for this distinction appears to be based on the level of difficulty involved in tracing the origins of a COVID-19 case where significant community transmissions are still occurring, as well as the fact that many employer operations do not, by their nature, allow for easy work-related determinations. Presumably, reaching work-related determinations will be easier, on some level, for those working in the fields excluded from this exemption.    

Typical OSHA reporting obligations apparently remain unaffected by this most recent OSHA guidance, and employers will still be required to report fatalities or serious injuries (including in-patient hospitalizations) arising from COVID-19.[4] However, since many employers will not be required to make “work-relatedness” determinations involving COVID-19, it will be more difficult for them to conclude that a COVID-19 fatality or serious injury is reportable, since they must be work-related to be reported in the first case. Further, employers should be mindful of the fact that fatalities only have to be reported if they occur within 30 days of the original workplace incident, and that hospitalizations or other serious injuries only have to be reported if they occur within 24 hours of the original workplace incident. Given the uncertain nature and progression of COVID-19, this may also result in less reporting.   

Finally, employers should note that OSHA’s modification to its standard enforcement policy regarding record keeping is temporary. The agency will update its guidance on reporting obligations as soon as it believes changes are further warranted. 

[1] https://protect-us.mimecast.com/s/AcxICPNpMNtKv23ZHz7Vod?domain=osha.gov

[2] https://www.osha.gov/SLTC/covid-19/standards.html

[3] http://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19

[4] http://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.39