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Understanding OSHA’s new guidance for employers in recording cases of COVID-19
By Jill Luft on May 21, 2020 at 11:00 AM

The U.S. Department of Labor has issued revised enforcement guidance addressing when an employee’s COVID-19 diagnosis is a recordable illness on the OSHA Form 300 under OSHA’s recordkeeping requirements. (See Revised Enforcement Guidance for Recording Cases of Coronavirus Disease (COVID-19), May 19, 2020.) Effective May 26, 2020, all covered employers[1] are responsible for recording cases of COVID-19 if it the case is confirmed to be COVID-19, is work-related, and involves one or more of OSHA’s general recording criteria (e.g. the illness results in the employee’s death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness, or the employee has a significant illness diagnosed by a licensed health care professional).

This revised enforcement guidance effectively rescinds the DOL’s earlier guidance on the topic issued on April 10, 2020, which limited the obligation to determine whether a COVID-19 illness was work-related and an OSHA recordable illness only to employers in the health care industry, emergency response organizations, and correctional institutions and encouraged all other employers to focus their efforts on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects.

The factors the DOL considered in expanding the recording requirement are:

  • Incidence: Confirmed COVID-19 cases have been found nearly everywhere in the country and in many industries other than health care, emergency response and correctional institutions.
  • Adaptation: Employers have taken swift and evolving steps to slow the spread of the coronavirus, protect employees, and adapt to new ways of doing business.
  • Return of the workforce: States are beginning to reopen their economies, and employees are returning to their workplaces.

Therefore, the DOL reasoned that all covered employers should now be taking action to determine whether their employees who contract COVID-19 likely did so in the workplace and, if so, to record such cases.

The revised enforcement guidance provides OSHA Compliance Safety and Health Officers (the inspectors) with considerations to apply when determining whether an employer has complied with the obligation to determine whether an employee’s COVID-19 illness is work-related and has made a reasonable determination of work relatedness. Noting that there is “no ready formula,” the DOL states that certain types of evidence may weigh in favor of a determination that an employee contracted COVID-19 at work, and certain evidence may weigh against a determination that an employee contracted COVID-19 at work.

For example, according to the guidance, COVID-19 illnesses are likely work-related:

  • when several cases develop among employees who work closely together, OR
  • if COVID-19 is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19, OR
  • if the infected employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission, AND
  • there is no alternative explanation.

On the other hand, COVID-19 illnesses are likely not work-related:

  • if the infected employee is the only worker to contract COVID-19 in the vicinity of her workplace and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread, OR
  • if outside the workplace, the infected employee closely and frequently associates with someone who has COVID-19, is not a coworker, and exposes the employee during the period in which that person was likely infectious.

One obvious and important missing factor that may lead to incorrect determinations by employers about work-relatedness is that some individuals who have COVID-19 are asymptomatic and do not know they are infected. It is impossible for an employer to consider those individuals – whether they are coworkers or family members of a diagnosed employee – in the employer’s assessment. Regardless, the guidance states that if, after conducting a reasonable and good-faith inquiry, “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.”

Unfortunately, this fact-specific analysis will be time-consuming for employers. It is very important for employers to document the steps they took, information gathered, and factors relied upon in reaching the decision, particularly when the finding is that a COVID-19 case is not work-related.

Our Employment & Labor Practice Group attorneys are continuously monitoring developments and are available to answer your questions regarding these high-level updates as well as specific situations that your business may encounter related to COVID-19.

[1] Note that pursuant to existing OSHA regulations, employers with 10 or fewer employees at all times during the previous calendar year (2019) and employers in designated low hazard industries generally do not need to keep OSHA injury and illness records unless the injury or illness results in a fatality, inpatient hospitalization, an amputation, or loss of an eye.  To see OSHA's low hazard industry list, click here: 

Link to COVID-19 Resources page

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