As the number of COVID-19 cases continues to grow across the U.S., employers should consider Occupational Safety and Health Administration (“OSHA”) injury and illness recording and reporting obligations in connection with confirmed employee cases of COVID-19. Generally, OSHA requires covered employers to prepare and maintain records of work-related injuries and illnesses. See 29 CFR § 1904. OSHA recently published a guidance concluding that COVID-19 can be a recordable illness, if the employee’s exposure to COVID-19 was work-related and otherwise satisfies OSHA’s recording requirements.

In addition to OSHA recording obligations, employers must also report severe, work-related injuries and illnesses.  In January 2015, OSHA revised its recordkeeping rules to expand the list of severe injuries and illnesses that employers must report to include work-related:

• Fatalities,
• In-patient hospitalization,
• Amputation, and
• Loss of an eye.

In general, OSHA requires employers to record employee illnesses that are (1) work-related, (2) new, and (3) meet OSHA’s recording criteria (described below). OSHA recently issued guidance explaining how this requirement applies to COVID-19.  Employers are only responsible for recording cases of COVID-19 if the case is:

1. A confirmed case of COVID-19; and
2. Work-related, as defined under 29 CFR § 1904.5; and
3. Involves one or more of the general recording criteria set forth in 29 CFR § 1904.7 (e.g., medical treatment beyond first-aid, days away from work).

We discuss each of these conditions in further detail below.

“Confirmed Case” – Notably, OSHA does not consider “the common cold or flu” to be work-related. The regulations limit this exception, though, specifying that “contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work.”  29 CFR § 1904.5(b)(2). OSHA’s recent guidance indicates that COVID-19 should be treated as one of these “contagious diseases,” and is therefore reportable if the employee was infected at work and the other criteria are satisfied. Further, OSHA excludes suspected, but unconfirmed, COVID-19 cases, citing Center for Disease Control guidance. Employers are expected to determine whether it is more likely than not that one or more events or exposures at work caused or contributed to the confirmed COVID-19 case and, if yes, the illness is work-related. 

“Work-Related” – Employers must consider an illness to be work-related if “exposure in the work environment” caused the illness, “unless an exception . . . specifically applies.”  29 CFR § 1904.5(a). Whether such a causal connection exists is left to the employer to decide.

• Unclear Source of Exposure – If it is not obvious whether the exposure occurred in the work environment, the employer must evaluate the employee’s work duties and environment to decide.  29 CFR § 1904.5(b)(3). 
• Work Environment: At Home – A work environment is any location where an employee is working as a condition of employment, which can include an employee’s home.  But, to be recordable, injuries or illnesses sustained from working at home must be “directly related to the performance of work rather than to the general home environment or setting.”  29 CFR § 1904.5(b)(7).  By way of example, OSHA has clarified that “if an employee drops a box of work documents and injures his or her foot, the case is considered work-related. . . . If an employee working at home is electrocuted because of faulty home wiring, the injury is not considered work-related.” In other words, illness caused by exposure to COVID-19 that occurs within an employee’s home does not appear to be subject to the recording requirement, unless the exposure was “directly related” to the employee’s work. 

General Recording Requirements – An employer must consider a work-related illness to meet the general recording criteria, and therefore to be recordable, if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. 29 CFR § 1904.7(a).  Because some COVID-19 cases might not result in “medical treatment,” not every COVID-19 case is necessarily recordable.

OSHA’s guidance clarifies that a covered employer must record or report certain cases of COVID-19 that arise from at-work exposure.  But there is considerable room for variance and discretion, and employers will benefit from a thoughtful and consistent approach to these very fact-specific issues.  For example, only a case confirmed by testing must be recorded or reported, but an employer only must record or report a confirmed case if it is more likely than not that the exposure was work-related.  And even if a confirmed case is work-related, recording or reporting might not be required if the employee does not receive medical treatment.