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View OSHA Expands Enforcement of COVID-19 Recordkeeping Requirements to Include Most Employers for current OSHA requirements.
On April 10, 2020, OSHA issued an updated enforcement memorandum regarding OSHA recordkeeping and COVID-19, which essentially declared that COVID-19 is presumptively “not work-related” for the purpose of OSHA recordkeeping rules (except for healthcare, emergency-responders, and corrections workers).
Since that initial memorandum, OSHA has clarified that COVID-19 can be a recordable illness if a worker is infected as a result of performing his/her work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:
- 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);
- The case is work-related, as defined by 29 CFR 1904.5; and
- 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 exposures at work.
For this reason, OSHA has clarified that:
- Employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services) and correctional institutions must continue to make work-relatedness determinations as required by OSHA regulations; and
- Until further notice, OSHA will not enforce 29 CFR Part 1904 to require other employers to make the same work-relatedness determinations, except where:
- There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
- The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.
OSHA hopes this enforcement policy will “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.”
All 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.