OSHA Issues New Guidelines for Recording COVID-19 Cases

By Timothy W. Bubenik - McMahon Berger P.C.

May 26, 2020

Effective May 26, 2020, U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued an Enforcement Memo revising their guidance on recording COVID-19 cases.  According to the new guidance, Compliance Safety and Health Officers (“CSHOs”) will have broad discretion in enforcing the recording requirements of 29 CFR § 1904 as they relate to COVID-19 and will base their determinations on efforts made by the employer to determine whether a COVID-19 case is work-related.  In determining whether to cite an employer for a COVID-19 recording infraction, CSHOs will consider the following:

- The reasonableness of the employer’s investigation into work-relatedness;
- The information available to the employer; and
- Evidence that the illness was work-related.

The Memo advises employers that while the agency understands privacy laws may prohibit employers from conducting extensive investigations into their employees’ medical conditions, once aware that an employee has contracted COVID-19, the employer must undertake some efforts to determine work-relatedness.  According to OSHA, an employer may conduct a sufficient investigation by asking how the employee believes they contracted COVID-19, discussing the employee’s activities (both at and out of work) that may have put them in contact with the illness, and reviewing the employee’s work station for indications of COVID-19 exposure.

Following the investigation, employers must consider all of the evidence available to determine if the illness was work-related.  While OSHA did not provide any information on an acceptable analysis, it articulated cases should be recorded when there is clear evidence of exposure to COVID-19 through the employee’s work duties and there are no alternate explanations.  If, after a thorough analysis has been performed, the employer cannot determine “it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19,” recording is not necessary.

If an employer determines an employee’s COVID-19 is recordable, it must be listed on their OSHA Form 300 and the illness should be categorized as a “respiratory illness.”  The employee’s name must be included unless the employee requests otherwise.

Traditionally, most communicable illnesses, such as colds and the flu, have been exempt from this recording requirement as they are considered too unpredictable to be considered “foreseeable” potential harms that would obligate an employer to take preventative measures.  In an Enforcement Memo dated April 10, 2020, however, OSHA advised employers that confirmed COVID-19 cases that are work-related and meet all other recording requirements are recordable.

In its April 10 Memo, OSHA advised employers they were required to record cases only when objective evidence reasonably available to the employer demonstrated the illness was work-related.  The April 10 Memo provided as an example a workplace where several employees who worked closely together contracted the illness without alternative explanation.

When the new guidance becomes effective on May 26, 2020, the April 10, 2020, guidance officially will be rescinded.  Note, however, CSHOs will be utilizing the enforcement procedures in the new guidance to review the recordability of any COVID-19 cases regardless of when the illness occurred.  Accordingly, employers should investigate all prior employee COVID-19 cases to determine work-relatedness, if they have not yet done so.

To ensure compliance with 29 CFR § 1904, employers should conduct an investigation whenever they learn an employee has contracted COVID-19.  Employers should take extensive notes during their investigation and reduce their analysis to writing, articulating why there is or is not sufficient evidence that the illness was work-related.  If properly done, the employer should have sufficient evidence to provide to OSHA demonstrating it met its recording obligations.