On April 10, 2020, the Occupational Safety and Health Administration (“OSHA”) published updated guidance on recordingkeeping requirements for COVID-19 cases in the workplace. This updated guidance supplements OSHA's March COVID-19 guidance on safeguarding the workplace against virus-related threats. We examine OSHA's recommendations on both fronts below.

Guidance on Recordkeeping Requirements & COVID-19

OSHA recordkeeping requirements mandate that employers record on their OSHA 300 log all instances of employees contracting the virus while on the job (i.e. where the illness is "work-related," defined as an event or exposure in the work environment that either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness).

In its guidance, OSHA recognized the difficulty of determining whether employees contracted COVID-19 while at work. Importantly, OSHA clarified that it will not enforce the recordkeeping requirements, with some industry exceptions, in areas where there is ongoing COVID-19 community transmission, unless:

1. There is objective evidence that the COVID-19 case may be work-related (e.g., several employees who work closely together became sick without an alternative explanation for how they contracted the virus); and
2. That evidence was reasonably available to the employer. “Reasonably available” in this context means information provided to the employer by the employee, and/or information regarding employee health and safety about which the employer learns in the ordinary course of managing its business and employees.

OSHA’s proclaimed enforcement waiver of recordkeeping requirements does not apply to employers in the following industries: healthcare, emergency response organizations, and correctional institutions. Employers in these industries must continue to make work-relatedness determinations and record instances as appropriate in their OSHA 300 log. This enforcement waiver is effective immediately, and has no current expiration date, although OSHA says it is intended to remain in effect though the current public health crisis.

Guidance on Safeguarding Workplaces During COVID-19

OSHA’s recordkeeping guidance comes on the heels of its March COVID-19 guidance on safeguarding the workplace, which addressed steps businesses can take to keep their workplaces safe during the pandemic. This guidance does not create new legal obligations, but it provides helpful information and advice on measures employers can take to limit the risk of exposure and infection for their employees, and how to respond if an employee does become ill. It is a good resource for companies that want to check their current COVID-19 workplace plan against OSHA’s advice to identify areas for improvement.

The guidance outlines detailed suggestions for workplace practices and policies depending on the risk exposure level of your employees. Four levels of risk exposure are identified, ranging from Very High – for those employee with a high potential for exposure, such as doctors or healthcare personnel who have direct contact with COVID-19 patients – to Lower Exposure Risk – workplaces which do not involve frequent contact with the public or COVID-19 patients. For each level of risk exposure, OSHA details the physical and administrative controls and other practices employers can implement to best manage the risk of exposure and protect their employees.

At a minimum, OSHA recommends that all employers develop an infectious disease preparedness and response plan, and stay informed of the latest guidance to keep the plan up to date. Employees should be encouraged to practice good hygiene practices such as thorough and frequent hand-washing, and covering coughs and sneezes. Sick employees should be strongly encouraged to remain or go home. Employers’ preparation should include appropriate policies to allow remote working or flexible work hours if possible, and prompt identification and isolation of employees who display signs or symptoms of COVID-19. In addition, OSHA advises employers to keep their employees apprised as to the steps being taken to protect them, and to provide information on relevant policies such as sick leave and remote work. For higher levels of exposure risk, OSHA provides more specific guidance on appropriate personal protective equipment, engineering and administrative controls, and safe work practices that can be used to protect at-risk workplaces.

While OSHA’s guidance is not binding, it is a valuable resource for employers looking to protect their workplaces during the COVID-19 outbreak.

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