The Occupational Safety and Health Administration (“OSHA”) has issued updated guidance ending its previous suspension of the recordkeeping requirements for COVID-19 cases in the workplace. Effective May 26, 2020, all employers covered by OSHA’s recordkeeping requirements must determine if an employee who contracts COVID-19 was infected while at work. Employers with 11 or more employees in most industries are covered by OSHA’s recordkeeping requirements. Those employers must list recordable workplace illnesses on the OSHA 300 log.
Under OSHA's recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19 if:
- The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
- The case is work-related; and
- The case results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.
COVID-19 cases should be coded as a respiratory illness. With the new guidance, covered employers will be expected to investigate COVID-19 cases and make a determination of work-relatedness.
OSHA has indicated that it is exercising its enforcement discretion and will enforce the recordkeeping requirements for employee COVID-19 illnesses for all employers. In determining whether a case is work-related, OSHA will use its discretion to assess the following:
- The reasonableness of the employer's investigation into work-relatedness.
- The evidence available to the employer.
- The evidence that a COVID-19 illness was contracted at work.
According to OSHA, if, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness. OSHA notes that in all events, it is important as a matter of worker health and safety, as well as public health, for an employer to examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.
In light of the new guidance, employers should be prepared to conduct investigations of all COVID-19 cases as described by OSHA.