OSHA Interim Guidance States That Almost All Employers Must Record COVID-19 as a “Recordable Illness” Under Existing Regulations

The Occupational Safety and Health Administration (OSHA) issued new guidance Tuesday, May 19, 2020, stating all employers are required to treat confirmed cases of COVID-19 arising from the workplace as recordable illnesses under OSHA recordkeeping requirements.

The new Guidance takes effect May 26, 2020, and rescinds the previous April 10 Guidance, which provided that only employers in healthcare, emergency response, and correctional institutions were required to keep records of COVID-19 illnesses. Under the new Guidance, all employers required to keep records of illnesses will be required to record cases of work-related COVID-19 cases. OSHA makes it clear that this Guidance is not meant to be permanent, but should only last as long as the current health-care crisis.  It advises employers to frequently check the website for updates.

Recordkeeping is required if the case is a confirmed case of COVID-19 as defined by the Centers for Disease Control and Prevention; if the case is work-related under existing OSHA regulations; and, if the case involves the general recording criteria of the regulations. It should be coded as a respiratory illness on OSHA Form 300. However, if an employee asks that his or her name not be entered on the log, then the employer must comply and omit the employee’s name.

While it is clear that OSHA is not changing pre-existing regulations, it is adding the requirement that work-related COVID-19 cases be reported as any other work-related illness.  Thus, employers with 10 or fewer employees and employers in low hazard industries would only be required to report the incidence of the illness if it resulted in a fatality, hospitalization, amputation or loss of an eye.

OSHA acknowledges the difficulty of determining “work-relatedness,” especially in light of most employers’ lack of expertise and employee privacy concerns, but gives guidelines to employers to make that determination. According to the Guidance, it is sufficient for an employer to ask the employee how he or she believes the illness was contracted and to discuss with the employee any out-of-work activities that may have led to the disease. OSHA does acknowledge that the employer must respect employee privacy, especially as it concerns out-of-work activity. OSHA does expect the employer to review the employee’s work environment for potential sources of exposure and to review any other instances of employees in that environment contracting COVID-19.

The employer is responsible for taking into consideration all evidence available to it at the time of the determination. If information later comes to the employer’s attention, then the employer should consider that also, perhaps leading to a revised determination.

OSHA lists some factors that the employers should take into consideration when determining work-relatedness. Where there are no alternative likely explanations, OSHA’s listed factors are: whether several cases have developed among workers who work closely together; whether the employee has had recent exposure to a customer or co-worker who has contracted a case; and, whether the employee has frequent close exposure to the general public.

OSHA also lists some factors that can be considered in determining that the illness is not work-related. The relevant factors are whether the employee was the only worker in the vicinity; whether the employee’s duties included exposure to the general public; whether the employee frequently associated with someone who was also diagnosed COVID-19, but who was not a co-worker and who likely exposed the employee during a period when the person was likely infectious. Employers should also give weight to any evidence of causation provided by medical care providers, public health departments, and the employee herself.

If, despite a reasonable and good faith inquiry, the employer is not able to determine causation of the illness, then the employer does not need to record the illness.  OSHA cautions employers to examine COVID-19 cases and to respond appropriately to protect workers regardless of whether the case is determined to be work-related.

Further information regarding the May 19, 2020, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) can be found here. For more information, also please visit Clark Hill’s COVID-19 Resources webpage.