United States Department of Labor Issues Guidance on Recording COVID-19 Cases Pursuant to OSHA

April 13, 2020

On April 10, 2020, the United States Department of Labor (“U.S. DOL”) issued interim enforcement guidance (the “Guidance”) regarding the recording of COVID-19 cases pursuant to the Occupational Health and Safety Act (“OSHA”). The Guidance sets forth different enforcement policies for employers in the healthcare industry (“healthcare employers”), emergency response organizations, and correctional institutions as compared to all other employers. The Guidance also provides information regarding those cases of COVID-19 that must be recorded pursuant to OSHA for employers whose recording obligations will be enforced. 

The Enforcement of OSHA Recording Requirements For COVID-19 Cases

According to the Guidance, the U.S. DOL will continue to enforce the OSHA recording requirements for COVID-19 cases for employers who employ healthcare workers, emergency response workers (e.g., emergency medical workers, firefighters, and law enforcement officers), and workers at correctional institutions. As such, these employers must determine whether cases of COVID-19 among employees are work-related and follow the OSHA recording requirements for qualifying COVID-19 cases.

On the other hand, the Guidance provides that the U.S. DOL will not enforce the OSHA recording requirements for COVID-19 cases for employers–other than healthcare employers, emergency response organizations, and correctional institutions–located in “areas where there is ongoing community transmission” of COVID-19, except under specific circumstances. Employers are required to determine the work-relatedness of COVID-19 cases and abide by the OSHA recording requirements for qualifying COVID-19 cases where: (1) there is objective evidence that a COVID-19 case may be work-related, and (2) such evidence is reasonably available to the employer. The Guidance provides that objective evidence includes a situation where multiple cases of COVID-19 “arise among workers who work closely together without an alternative explanation.” The Guidance also provides examples of reasonably available evidence, including “information given to the employer by employees,” and where an employer learns information about its employees’ health and safety during the ordinary management its business and employees.

Recording COVID-19 Cases Pursuant to OSHA 

The Guidance provides that COVID-19 is a recordable illness under OSHA.  This means that healthcare employers, emergency response organizations, correctional institutions, and other employers who meet the above-described exception must record cases of COVID-19 when:

  1. An employee tests positive for COVID-19; 
  2. The case of COVID-19 is work-related; and
  3. The case involves one or more of the general recording criteria. 

Employers should note that since COVID-19 constitutes an illness under OSHA, employers must comply with employees’ voluntary requests that their names not be recorded on the OSHA Form 300 log.  29 C.F.R. § 1904.29(b)(7)(vi).

Work-Relatedness 

To determine whether a case of COVID-19 is work-related, employers must analyze whether an event or exposure in the work environment (1) “caused or contributed to the resulting condition,” or (2) “significantly aggravated a pre-existing injury or illness.”  29 C.F.R. § 1904.5.  

Work-relatedness is presumed for injuries and illnesses, including cases of COVID-19, which result from events or exposures occurring in the work environment, unless an exception proscribed by the federal regulations applies.  Id.  Exceptions to the work-relatedness presumption include.

  1. the illness or injury is solely the result of an employee doing personal tasks unrelated to their employment at the workplace outside of the employee's assigned working hours; 
  2. the illness or injury results solely from a non-work-related event or exposure that occurred outside the work environment but involves signs or symptoms that surfaced at work;
  3. the employee was present in the workplace as a member of the general public;
  4. the illness or injury is solely the result of an employee eating, drinking or preparing food or drink for personal consumption; or 
  5. the illness or injury is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.

29 C.F.R. § 1904.5(b)(2).

An illness or injury is significantly aggravated, requiring recording under OSHA, when an event or exposure in the work environment results in one of the following, which would not have occurred but for the occupational event of exposure:

  1. Death;
  2. Loss of consciousness;
  3. One or more days away from work, days of restricted work, or days of job transfer; or
  4. Medical treatment that was not needed before the workplace event or exposure, or a change in medical treatment necessitated by the workplace event or exposure.

29 C.F.R. § 1904.5(b)(4).

Employers who have temporarily transitioned their employees to remote work should note that employees may incur work-related illnesses and injuries while working from home.  An illness or injury that occurs while an employee is working from home is considered work-related under OSHA if “the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.”  29 C.F.R. § 1904.5(b)(4).

The General Recording Criteria

The general recording criteria, triggering employers recording obligations under OSHA, is satisfied if an injury or illness, including a case of COVID-19, results in one or more of the following:

  1. Death
  2. One or more days away from work
  3. Restricted work or transfer to another job
  4. Medical treatment beyond first aid
  5. Loss of consciousness
  6. A significant injury or illness diagnosed by a physician or other licensed healthcare professional.

29 C.F.R. § 1904.7

Takeaway for Employers

Healthcare employers, emergency response organizations, correctional facilities, and employers with reasonably available, objective evidence of a possible work-related case of COVID-19 should continue to make determinations as to whether cases of COVID-19 among employees are work-related and abide by the OSHA recording requirements for all qualifying cases.  All other employers are provided a temporary reprieve from their obligation under OSHA to determine the work-relatedness of COVID-19 cases and corresponding recording requirements.

These materials were prepared by Putney, Twombly, Hall & Hirson LLP prior to their combination with Bond, Schoeneck & King for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create an attorney-client relationship or an attorney-client privileged communication. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.