On May 19, 2020, the Occupational Safety and Health Administration (OSHA) provided updated interim guidance detailing when employers must record COVID-19 illnesses. This new guidance applies to employers with 10 or more employees. It goes into effect May 26, 2020, until further notice, and supersedes guidance issued April 10, 2020.
The new guidance clarifies that employers are responsible for recording instances of COVID-19 if all the following criteria are met:
- The case is a confirmed case of COVID-19 (as defined by CDC information);
- The case is work-related (as defined by 29 CFR § 1904.5); and
- 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).
OHSA acknowledged it can be difficult to determine whether a COVID-19 illness is work-related, especially if an employee has experienced potential exposure both in and outside of the workplace. In light of these considerations, OSHA is exercising enforcement discretion to assess employers’ efforts in making work-related determinations. Recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.
For those subject to reporting, OSHA provides the following criteria to assist in determining if a COVID case is considered work related:
- Reasonableness of the employer’s investigation into work-relatedness. It is sufficient (in most circumstances) for the employer to: (a) ask the employee how s/he believes s/he contracted the disease; (b) while respecting employee’s privacy, discuss with the employee her/his work and out-of-work activities that may have led to the illness; and (c) review the employee’s work environment for potential exposure.
- 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.
- Evidence that a COVID-19 illness was contracted at work. Compliance Safety and Health Officers (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. For example, an employee’s COVID-19 illness is likely work-related if it was contracted shortly after lengthy, close exposure to a customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation. Or in contrast, an employee’s COVID-19 illness is likely not work-related if they are the only worker to contract COVID-19 in the vicinity and the job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
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. Employers who fail to promptly record work-related illnesses, however, may be subject to OSHA citations and monetary penalties.
If you have questions about OSHA’s updated guidance or reporting COVID-19 related illnesses, contact Nicole Gardner