OSHA Expands Enforcement of COVID-19 Recordkeeping Requirements to Include Most Employers

On May 19, 2020, OSHA issued revised enforcement guidance regarding OSHA recordkeeping requirements related to COVID-19. The revised enforcement overrides the previous interim guidance released on April 10, 2020 that required only employers of workers in the healthcare industry, emergency response organizations, correctional institutions and those that had objective “reasonably available” evidence that a COVID-19 case may be work-related to make a work-relatedness determination.
 
Revised Enforcement Guidance for Recording Cases of COVID-19 (5.19.20)
 
The newly released guidance will require most employers to now determine whether an employee’s COVID-19 diagnosis is work-related. If an employer determines that an employee’s COVID-19 case is work-related and otherwise meets the general recording criteria set forth in 29 CFR 1904.7, then the illness must be recorded on the employer’s OSHA 300 log.

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness if:

  1. The case is a confirmed case of COVID-19 (see Centers for Disease Control and Prevention (CDC) informationon persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
  2. The case is work-related, as defined by 29 CFR 1904.5; and
  3. The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7(e.g., medical treatment beyond first aid, or days away from work).

The guidance recognizes that in areas where there is ongoing community transmission, employers may have difficulty determining whether workers who contracted COVID-19 did so due to work-related exposure.

For this reason, OSHA is exercising enforcement discretion to assess employers’ efforts in making work-related determinations.

The new guidance does not require employers to undertake extensive medical inquiries to evaluate work-relatedness. It is sufficient, in most instances, for employers to make a reasonable work-relatedness determination by:

  1. Asking the employee how they believe they contracted COVID-19
  2. Discussing the employee’s work and out of work activities that may have led to contracting the illness
  3. Reviewing the employee’s work environment for potential exposure

If after a reasonable and good faith inquiry described above the employer cannot determine that 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 in its OSHA 300 log.

Key Takeaways

All COVID-19 cases may not be deemed recordable or work related, as defined by 29 CFR 1904.5. It is important to conduct a comprehensive investigation in identifying whether the worker is infected as a result of performing their work-related duties.

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