OSHA Issues New Guidance on COVID-19 Recording Obligations

On May 19, 2020, the Occupational Safety and Health Administration (OSHA) issued new enforcement guidance on employers’ recording obligations. The guidance clarifies when employers must record cases of COVID-19 as an occupational respiratory illness on the OSHA log. Effective Tuesday May 26, 2020, this new guidance supersedes the previous guidance from April 10, 2020.

The new guidance clarifies that COVID-19 is a recordable illness and requires employers to make a reasonable and objective inquiry into whether it is work-related. Under the new guidance, employers are responsible for recording cases of COVID-19, if:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
  2. The case is work-related as defined by 29 CFR § 1904.5; and
  3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7, which are:
    1. Death
    2. Days away from work
    3. Restricted work or transfer to another job
    4. Medical treatment beyond first aid
    5. Loss of consciousness
    6. A significant injury or illness diagnosed by a physician or other licensed health care professional

Employers should thus undertake a good faith and reasonable inquiry into whether the COVID-19 illness is work-related. If, after the reasonable and good faith inquiry, the employer cannot determine whether it is more likely than not that exposure in the workplace caused that case of COVID-19, the employer does not need to record that COVID-19 illness.

In most circumstances, when an employer learns of an employee contracting COVID-19, the employer should:

  1. Ask the employee how they believe they contracted the COVID-19 illness
  2. While respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness; and
  3. Review the employee’s work environment for potential COVID-19 exposure. The employer should also consider any other instances of workers in that environment contracting COVID-19.

The inquiry should be based on the information reasonably available to the employer at the time it is making the determination. If the employer later learns more information related to an employee’s COVID-19 illness, then that information should be considered as well.

The guidance also lists factors that support or cut against work-relatedness:

An employee’s COVID-19 illness is likely work-related if:

  • Several cases develop among workers who work closely together and there is no alternative explanation;
  • The illness is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation;
  • The 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.

An employee’s COVID-19 illness is likely not work-related if:

  • The employee is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • The employee, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who has COVID-19 is not a coworker, and exposes the employee during the period in which the individual is likely infectious.