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OSHA Issues Revised Enforcement Guidance for Reporting COVID-19 cases

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued updated interim guidance regarding its enforcement of an employer’s recordkeeping requirements to address reporting of COVID-19 cases in the workplace during the current public health crisis. This new guidance rescinds prior guidance effective May 26, 2020 and will remain in place until further notice.

The updated guidance designates COVID-19 as a recordable illness under OSHA under the following circumstances:

  • The case is a confirmed case of COVID-19;
  • The case is work-related; and
  • The case involves one or more of the general recording criteria.

An employer must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception specifically applies.

An injury or illness meets the general recording criteria if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in any of these events.

Recognizing the difficulties in determining whether an employer’s contraction of COVID-19 is work related, in evaluating an employer’s compliance with recording obligations, the guidance directs its compliance officers to consider:

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

An employer is not required to record the employee’s COVID-19 illness if it cannot make a determination whether it is work-related after a reasonable and good faith inquiry based on the above considerations.  An employer’s inability to determine work-relatedness of an employee’s COVID-19 illness does not change the employer’s obligations under OSHA to take appropriate steps to maintain a safe workplace to protect employee health and safety and should follow OSHA and CDC guidelines for cleaning and sanitizing its workplace.

As employers work to keep up with the rapid developments in response to COVID-19, our labor and employment attorneys are here to guide you through the many employment related challenges and decisions employers must face.  Please contact us to assist you.