OSHA Reinstates Enforcement of Recordkeeping Requirements for COVID-19 Cases for All Employers

On May 19, 2020, the Occupational Safety and Health Administration (OSHA) issued new enforcement guidance reinstating all employers’ obligation to assess whether employees’ COVID-19 infections are work-related and thus recordable on OSHA Form 300. This new enforcement position takes effect on May 26. OSHA is rescinding its prior April 10 enforcement guidance, which provided that only healthcare and emergency response employers, as well as those operating correctional institutions, had an ongoing obligation to perform work-relatedness determinations. 

OSHA’s rationale for its prior, soon-to-be-rescinded enforcement guidance was that work-relatedness determinations were too difficult for most employers where there is ongoing community transmission, making it unclear whether an individual became exposed at or outside of work. However, in light of changing circumstances, including many Americans returning to work in the near term, OSHA is requiring all employers to undertake the difficult task of determining whether a COVID-19 infection is work-related. In support of its new enforcement position, OSHA notes that confirmed COVID-19 cases have now been identified in nearly all parts of the country, including “outbreaks among workers in industries other than healthcare, emergency response, or correctional institutions.” Additionally, OSHA says that transmission and prevention have become better understood and employers “have taken rapid and evolving steps to slow the virus’s spread, protect employees, and adapt to new ways of doing business.” As a result, “All these facts—incidence, adaptation, and the return of the workforce—indicate that employers should be taking action to determine whether employee COVID-19 illnesses are work-related and thus recordable.”

Nevertheless, OSHA continues to acknowledge that due to “the nature of the disease and ubiquity of community spread, however, in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” Accordingly, OSHA provides the following guidelines to assist employers in making these determinations:

In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, CSHOs (Compliance Safety and Health Officers) should apply the following considerations:

  • The reasonableness of the employer’s investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness, (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness, and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.
  • The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee’s COVID-19 illness, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.
  • The evidence that a COVID-19 illness was contracted at work. CSHOs should take into account all reasonably available evidence, in the manner described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:
    • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
    • An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
    • An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
    • An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
    • An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19, (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
    • CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.

If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.

Because OSHA will exercise its enforcement discretion to assess employers’ “efforts” to make “a reasonable determination of work-relatedness,” employers will need to be able to show their work to a CSHO as to how a determination was made that a confirmed COVID-19 case was not recordable. Thus, employers will be well served by documenting their analysis of the above factors in making work-relatedness determinations. 

The above guidelines pertain only to an employer’s determination of whether a case is work-related. In addition to being work-related, two other criteria must be met for a COVID-19 case to be recordable: (1) it must be a confirmed case according to the CDC, meaning “an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19,” and (2) the case must involve one or more of the general recording criteria, which generally means death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.

OSHA also reminds employers that recording a case on Form 300 “does not, of itself, mean that the employer has violated any OSHA standard.” Additionally, for COVID-19 cases that are deemed recordable, OSHA also reminds employers that employees may voluntarily request that their name not be entered on Form 300 because it involves an illness.

Those employers who are partially exempt from recordkeeping requirements based upon having 10 or fewer employees or being in low-risk industries are still required to report to OSHA a workplace incident that results in a fatality, inpatient hospitalization, amputation, or loss of an eye. Under these new guidelines, partially exempt employers with a confirmed COVID-19 hospitalization or fatality will be required to conduct the above work-relatedness analysis to determine whether the hospitalization or fatality must be reported to OSHA.   

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.

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