OSHA Revises Guidance for Recording COVID-19 Cases

On May 19^th OSHA issued new enforcement guidance regarding an employer’s obligation to record cases of COVID-19 on the OSHA injury and illness logs. The new guidance took effect Tuesday, May 26, 2020, and supersedes OSHA’s previous guidance issued in April.

OSHA states that COVID-19 cases are recordable if the illness is confirmed as COVID-19.  The illness is work-related as defined by 29 CFR 1904.5 and involves at least one of the general recording criteria listed in 29 CFR 1904.7. The criteria include days away from work, medical treatment “beyond first aid”, loss of consciousness, and restricted work or transfer to another job.

The guidance acknowledges that, due to community spread, there is an inherent amount of uncertainty in determining whether the illness is work-related especially when an employee has experienced potential exposure both in and out of the workplace. As such, OSHA will exercise its enforcement discretion in reviewing employers’ work-related determinations.  Under the revised guidance, in determining whether employers have complied with their recordkeeping obligations, OSHA will consider the following:

• The reasonableness of the employer’s investigation into work-relatedness
• The evidence available to the employer
• The evidence that COVID-19 was contracted at work

If, after considering such factors, the employer cannot determine it is more likely than not that the workplace caused the employee’s case of COVID-19, then it need not record the illness. OSHA will have the authority to review these decisions on a discretionary basis. As such, employers should be able to point to the factors that they considered in making their work-relatedness determination. This is best accomplished by documenting the considerations made regarding each COVID-19 illness. If the illness must be recorded, remember to ask the employees if they want their names redacted from the OSHA 300 log for privacy reasons.

OSHA’s new guidance creates a framework for recording work-related cases of COVID-19 for all employers with recording obligations under OSHA’s recordkeeping rule, imposing greater obligations for the majority employers outside of healthcare, emergency response, and correctional facilities.  The key for all employers will be to conduct a reasonable and objective evaluation of work-relatedness and to then make the appropriate determination.

For more information and OSHA’s full updated guidance, please visit www.osha.gov.