OSHA Issues Revised Guidance for Recording Cases of COVID-19

On May 19, 2020, the Occupational Health and Safety Administration (OSHA) issued revised enforcement guidance for recording cases of COVID-19, effectively rescinding their previous guidance memorandum of April 10, 2020.

OSHA had previously required employers in the healthcare industry, emergency response organizations, and correctional institutions to make individualized determinations of work-relatedness of COVID-19 under OSHA’s general recording criteria but spared other employers from strict compliance, essentially creating a presumption that COVID-19 cases were not work related.

OSHA has now stated that it will enforce their recording requirements for all employers. OSHA continues to recognize, however, the difficulty that employers will face in determining work relatedness of COVID-19 cases and will exercise discretion in assessing an employer’s efforts in making these determinations.

Factors to Consider

According to the enforcement memorandum, Compliance Safety and Health Officers should consider the following when determining if an employer has reasonably investigated whether a COVID-19 case is work related:

  1. Did the employer inquire how the employee believes he contracted COVID-19 and discuss the employees work and out of work activities, taking into consideration employee privacy concerns?
  2. Did the employer review the work environment for potential exposure and to determine if there are instances of other workers contracting the illness?
  3. What evidence was available to the employer at the time of its investigation?

The memorandum provides instances where evidence may weigh in favor of a determination of work relatedness including instances where several cases develop among workers in close proximity; where an employee contracted COVID-19 after a lengthy encounter with a customer or co-worker who is a confirmed case; and where an employee has frequent, close exposure to the general public with high incidence of community transmission. In these instances, in the absence of an alternative explanation, work-relatedness would be likely and need to be recorded.

If a COVID-19 case is determined to be work related and recordable, it does not automatically mean that the employer has violated a safety standard and an employee can request his or her name not be entered on the log.

Bottom Line

All employers are now required to conduct a reasonable investigation to determine if COVID-19 cases are work-related and recordable. If after investigation, the employer is unable to determine if COVID-19 exposure was more likely than not work-related, the case does not need to be recorded. But employers need to take into consideration this new guidance to ensure they are conducting reasonable investigations to determine if COVID-19 exposure is work related and recordable.