The Occupational Safety and Health Administration’s (OSHA) revised enforcement memorandum provides that under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19, if:
- The case is a confirmed case of COVID-19;
- The case is work-related*; and
- The case involves one or more general recording criteria*.
*An illness is work-related if an event or exposure in the work environment either causes or contributes to a condition or significantly aggravates a pre-existing illness. This is presumed for illnesses or injuries resulting from events or exposures occurring in the work environment unless one of the narrow exceptions in federal regulations apply.
*The general recording criteria includes conditions in which the illness or injury results in either: death, absences from work, restricted work or transfer to another position, medical treatment (beyond first aid), or loss of consciousness. If one of these conditions is not met, an employer must also consider a case to meet the general recording criteria if it involves a significant illness or injury diagnosed by a physician or other licensed health care professional.
There are three forms for employers to fill out under the recording requirement—this includes an injury and illness incident report (Form 301), a log (Form 300), and a summary (Form 300A).
Notably, OSHA has indicated that it is exercising enforcement discretion regarding work-relatedness in the context of employee COVID-19 illness. OSHA acknowledges that because of the “nature of the disease and ubiquity of community spread, in many instances it remains difficult to determine whether a COVID illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” Therefore, recording a COVID-19 illness does not necessarily mean that the employer violated an OSHA standard.
Additionally, pursuant to existing regulations, employers with 10 or less employees as well as employers in low hazard industries do not have recording obligations; instead, they are only required to report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye. A complete list of the industries which are exempt from OSHA’s recording requirements can be found here.
Importantly, as stated above, even if an employer is exempt from OSHA’s recording requirements it must still determine work-relatedness for purposes of OSHA’s reporting requirements for any employees who received in-patient hospitalization treatment due to COVID-19.
In determining whether an employer has complied with this obligation and made a reasonable good faith determination of work-relatedness, Compliance Safety and Health Officers (CSHO) should apply the following considerations:
- The reasonableness of the investigation. Employers are not required to undertake extensive medical inquiries. It is typically sufficient for an employer to use the following steps when learning of an employee’s COVID-19 illness: (1) ask the employee how he believes he contracted COVID-19; (2) ask the employee about his activities in and out of work that may have led to the COVID-19 illness (while being mindful of employee privacy); and (3) review the his work environment for potential exposure (taking into consideration other employees who contracted the illness in that environment).
- The evidence available. Evidence of work-relatedness includes what was reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns additional information, then that information should be considered to determine whether the employer made a reasonable work-relatedness determination.
- The evidence that COVID-19 was contracted at work. Certain evidence makes it more or less likely that the illness work-relatedness. For example:
- More likely work-related when several cases develop among workers who work closely together and there is no other explanation.
- More likely work-related when the employee contracted the illness after close contact with a customer or colleague who had a confirmed case of COVID-19 and there is no other explanation.
- More likely work-related when an employee’s position involves close contact with members of the general public in a locality with ongoing community transmission and there is no other explanation.
- Not likely work-related if employee is the only one to contract the illness in his work area and his position does not involve close contact with the general public, regardless of the rate of community spread.
- Not likely work-related if, outside of the workplace, the employee was exposed to COVID-19.
- CSHOs are also advised to give consideration to evidence of causation from medical providers, public health authorities, or the employee himself.
After the inquiry, if an employer cannot determine whether it is more likely than not that an exposure in the workplace played a causal role in a case of COVID-19, then the employer does not need to record that illness.
Once employers determine whether COVID cases are work-related, employers must report any incidents of in-patient hospitalization treatment (as opposed to only observation or testing) which occurred within 24 hours of the exposure at work. See OSHA’s FAQ.
Employers may report COVID-19 related fatalities or in-patient hospitalization by calling the nearest OSHA office, calling the OSHA 24-hour hotline at 1-800-321-OSHA (6742), or by online submission. There may also be additional reporting requirements under state or local law.