OSHA Updates Rules on Recording Workplaces Cases of COVID-19

Earlier this month, the Occupational Safety and Health Administration (“OSHA”) revised its Enforcement Guidance for Recording Cases of COVID-19.  Under OSHA’s recordkeeping requirement, an employer is responsible for recording a workplace case of COVID-19 if it: (1) is a confirmed case of COVID-19, as defined by the U.S. Centers for Disease Control and Prevention (“CDC”); (2) is “work-related”; and (3) involves one or more of the general recording criteria (i.e., it results in any of the following: “death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness [or] if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional.”).  Based on these criteria, the major question becomes when a case of COVID-19 is considered to be “work-related.”

OSHA regulations generally provide that 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.”  In its Enforcement Guidance, OSHA acknowledges that, as it may be difficult to determine whether a case of COVID-19 is work-related, the agency will be “exercising enforcement discretion to assess employers’ efforts in making work-related determinations.”  In particular, OSHA will consider: (1) the reasonableness of the employer’s investigation into work-relatedness; (2) the evidence available to the employer; and (3) the evidence that a case of COVID-19 was contracted at work. 

With respect to the first factor, OSHA indicates that an employer will generally have made a sufficient investigation if, upon learning of an employee’s COVID-19 diagnosis, it: (1) asks the employee how he/she believes he/she contracted the virus; (2) discusses with the employee his/her work and out-of-work activities which may have led to him/her contracting the virus; and (3) reviews the employee’s work environment for potential COVID-19 exposure (including from other employees in the work area who have had COVID-19). 

As to the second factor, the Enforcement Guidance provides that a determination on whether a case of COVID-19 is work-related must be based on the information reasonably available to the employer at the time it investigated the work-relatedness of the case.  OSHA notes, however, that if an employer subsequently learns additional information related to an employee’s case of COVID-19, OSHA can consider that information.

Finally, with respect to the third factor, OSHA indicates that evidence of work-relatedness can include: (1) the incidence of COVID-19 among employees who work in close proximity; (2) an employee contracting COVID-19 after lengthy, close-range exposure to a customer or co-worker with a confirmed case of COVID-19; and (3) the employee’s job duties requiring frequent, close contact with the public in an area with ongoing COVID-19 transmission.  By contrast, OSHA states that evidence against work-relatedness can include: (1) an employee being the only worker in the area to contract COVID-19; (2) an employee’s job duties not including frequent contact with the general public; and (3) an employee frequently associating with individuals outside of work who have COVID-19.

Although employers must remember that recording an illness does not necessarily mean that the employer has violated an OSHA standard, they cannot lose sight of their obligation to record when the foregoing requirements are met.  For questions about this or any other labor and employment topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac.  To stay updated on the key labor and employment law developments that affect your workplace, subscribe to our blog and follow us on social media.