On Tuesday May 19, 2020, the Occupational Safety and Health Administration (OSHA), issued a new guidance (again) on employers’ obligation to record COVID-19 cases in the workplace.  Specifically, effective on May 26, 2020, OSHA is rescinding its April 20, 2020 guidance to employers on their obligations recording coronavirus in the workplace.  In that soon-to-be superseded guidance, and as we reported here, OSHA was previously not requiring employers to record positive cases outside the healthcare/emergency responder fields without objective evidence that a positive COVID-19 case is work related and there was evidence of work-relatedness reasonably available to the employer.  

Now, under the guidance effective on May 26, 2020, OSHA has determined that coronavirus is a recordable illness (as a respiratory illness on an OSHA Form 300) and employers must record it IF:

1. The employee has a confirmed case of COVID-19 (as set forth under CDC guidelines);

2. The employee was exposed to COVID-19 in the work environment; and

3. The case is recordable under general OSHA standards (results in any of the following: death, days away from work, restricted work, transfer to another job, medical treatment beyond first aid or loss of consciousness).

Given the return to work in many states, OSHA decided to exercise its enforcement discretion and require recordkeeping of work related COVID-19 cases under 29 CFR 1904.  OSHA reminds employers that merely recording an instance of COVID-19 does not mean that the employer violated any OSHA standard.  OSHA will consider the following information in determining whether the employer properly made work-related determinations:

1. The reasonableness of the investigation into work-relatedness.  OSHA cautions employers that they are not obligated to take extensive medical inquiries but should ask the employee who tested positive how the employee believes he contracted the virus, discuss with the employee activities outside of work that may lead to exposure and review the work environment for potential exposure (including knowledge of other employees at the worksite who have tested positive).

2. The scope of the information that was available to the employer at the time it made the decision about work relatedness and whether the employer later learned additional information.

3. Factors that will weigh in favor of work related and therefore recordable:

• Several cases develop among workers who work closely and there is not an alternative explanation;

• Shortly after “lengthy, close” exposure to customer/co-worker and there is not an alternative explanation;

• Job duties include close frequent contact with the public community with significant cases and there is not an alternative explanation.

4. Factors that weigh against a finding of work related:

• Only one worker contracts COVID-19, and his/her job duties do not involve contact with the public (regardless of positive cases in the community);

• The worker has close contact family member/friend who is not a coworker who has COVID-19 during the period in which the worker was likely infected.

OSHA also will give weight to any other evidence of causation based on the individual employee, medical advice, public health authorities and/or the employee’s anecdotal information.

If after the reasonable and good faith inquiry, the employer cannot determine that exposure within the work environment played a causal role in the employee’s infection, then the employer does not need to record the COVID-19 illness. To demonstrate good faith, employers should ensure they have documented their considerations and the information relied upon in making their determinations of work-relatedness.