OSHA COVID-19 Case Recording and Enforcement Guidance

OSHA has also recently published Enforcement Guidance for Recording Cases of COVID-19 and Interim Enforcement Response Plan for COVID-19 that employers should be aware of. Importantly, even if an employer may not be a specifically regulated or regularly inspected business, OSHA has a “General Duty” clause that requires ALL employers to provide a safe workplace; one that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Pursuant to the recent guidance, OSHA will recognize COVID-19 exposure as such a hazard.

OSHA will be accepting and investigating complaints submitted by employees and Compliance Safety Health Officers (“CSHOs”) will prioritize COVID-19 related conditions, starting with incidents involving either a death or imminent danger. Employers are responsible for recording cases of COVID-19 if all of the following requirements are met:

  • The case is a confirmed case of COVID-19, as defined by the CDC;
  • The case is work-related, as defined by 29 CFR § 1904.5; and
  • The case involves one or more of the recording criteria set forth in 29 CFR § 1904.7 (e.g., medical treatment, days away from work).

OSHA has indicated that employer-reported fatalities and hospitalizations should be investigated to ensure that employers take “prompt actions” to mitigate hazards and protect employees. CSHOs will take into consideration an employer’s reasonable availability of information and resources.

OSHA has also identified the most common safety complaints that have developed during the pandemic. Most relate to lack of personal protective equipment (PPE) and lack of training on appropriate standards and about possible COVID-19 illnesses in the workplace.

Employers must ensure they are appropriately addressing safety issues that may arise due to COVID-19, and understand how to effectively manage an OSHA inspection that may arise due to the pandemic.