Type: Law Bulletins
Date: 03/20/2020

COVID-19 and OSHA Injury and Illness Recordkeeping and Reporting Requirements

Whether an employee infected with COVID-19 constitutes an illness that must be recorded on an employer’s OSHA 300 log will, in most cases, turn on whether the employee’s exposure to the virus and resulting infection are “work-related” within the meaning of OSHA’s injury and illness recordkeeping and reporting rule (29 C.F.R. Part 1904). 

According to OSHA, “COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met: (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 (e.g. medical treatment beyond first aid, days away from work).” 

If an employee is symptomatic, but not yet a confirmed case, then it is not recordable, and there is no need to evaluate work-relatedness. For any confirmed case, treatment protocols will very likely result in the general recording criteria being met (i.e., days away from work at the very least, and likely medical treatment beyond first aid), so the key to determining recordability is whether the employee’s infection with COVID-19 is work-related, or whether the employee was exposed in the work environment (which is anywhere the employee is performing work-related duties). If the employee is exposed outside the work environment and signs or symptoms later manifest or surface when the employee is present in the workplace, the illness is not work-related and thus not recordable.

It may not be possible to determine the precise time and location of an employee’s exposure to the virus, but employers should do a case-by-case assessment to determine whether the facts and circumstances indicate a likelihood of exposure in the work environment.

This assessment should take into account various factors, including but not limited to:

  1. The nature of the work environment and the type of work performed.
  2. The extent of personal interaction in the workplace and risk of person-to-person spread.
  3. Whether there are known cases in the community.
  4. Whether there are other known cases within the company or work environment.
  5. Whether the employee has recently traveled to other communities (taking into account the location and mode of travel).
  6. Whether the employee lives with an infected individual.
  7. Whether the employee has engaged in any other known activity outside of work that presents an exposure risk.

Healthcare workers are generally viewed to be at a higher risk of work-related exposure than non-healthcare workers. If an employee becomes infected while working from home or telecommuting, work-relatedness will depend on whether the exposure was directly related to the performance of work (e.g., coming in contact with an infected individual while conducting an in-person meeting) as opposed to the general home environment or setting (e.g., the employee lives with an infected individual).

If the above criteria for recordability are met, the case may also be reportable to OSHA (or an applicable state plan) if it results in a fatality or an in-patient hospitalization of at least one employee. To be reportable, a fatality must occur within 30 days of the work-related event or exposure that resulted in the COVID-19 infection. Similarly, a hospitalization must occur within 24 hours of the work-related event or exposure to be reportable. These time limits may vary under certain state plans (such as Kentucky OSH, which does not recognize these time limits but allows slightly longer reporting windows).

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