On April 10, 2020, in a Friday night memo, the Occupational Safety and Health Administration (OSHA) updated its guidance on whether employers are required to record cases of COVID-19 in their 300 Logs for reporting occupational injuries and illnesses.  OSHA’s memo is a welcome update from the Agency on an issue that has been of significant concern to all industries.

When is an Illness Recordable?

OSHA’s recordkeeping rules apply only to injuries or “illnesses.”  The rule defines an injury or illness as “an abnormal condition or disorder.”  As the virus began to spread across the country, OSHA confirmed that COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties.  By mandating that COVID-19 is a recordable illness, OSHA placed employers in the difficult (and often impossible) situation of attempting to determine when an employee contracted the virus—was the employee infected at work or while away from work?

OSHA’s COVID-19 Recordability Test

In its April 10 memo, OSHA restated that COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if:

1. the case is a tested-positive confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC);
2. the case is “work-related,” which is defined as an event or exposure that either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness; and
3. the case involves one or more of the following:
   • death
   • days away from work
   • restricted work or transfer to another job
   • medical treatment beyond first aid
   • loss of consciousness
   • a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.

Given that most every employer directs employees to remain away from work after a positive COVID-19 test, every instance of a positive test could result in a recordable event if the illness was “work-related.”

But is it Work-Related?

In the memo, OSHA acknowledges that employers “may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.”  In light of these “difficulties,” OSHA has provided the following guidance:

Employers of workers 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 pursuant to 29 CFR § 1904.  Until further notice, however, OSHA will not enforce 29 CFR § 1904 to require other employers to make the same work-relatedness determinations, except where:

1. 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
2. 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.

Going Forward

For non-frontline employers (employers that are not healthcare providers or emergency first responders) and employers that are not correctional institutions, OSHA explicitly states that except in limited situations, OSHA will not enforce its recording requirements.  OSHA highlights, however, that there might be some scenarios where these employers would have to record a positive COVID-19 illness such as when there are a cluster of workers that all contract the virus. 

The guidance, however, for healthcare providers, emergency first responders, and correctional institutions, becomes less clear.  By explicitly stating that non-frontline/non-correctional institution employers do not generally have a recording requirement, it appears that, in contrast, frontline employers and correctional institutions must take a closer look at their confirmed cases of COVID-19.  There may be non-cluster scenarios where these employers must record the illness.

Ultimately, while shedding some light on employer recording responsibilities, OSHA’s new guidance places the onus on all employers to track carefully COVID-19 cases in their workplaces.  Furthermore, OSHA’s guidance does not specifically address an employer’s obligation to report to OSHA work-related cases of COVID-19 that result in a fatality or an in-patient hospitalization.  By not doing so, employers must still make a judgment as to how to proceed if a reportable case arises.  We recommend consulting with legal counsel when determining whether to record or to report.