On May 26, 2020, OSHA issued revised guidance regarding the reporting of COVID-19 cases.  A link to the guidance is available here.

OSHA recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.  COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met: (1) The case is a confirmed case of COVID-19 (a self-diagnosis or likely diagnosis by a medical professional is insufficient); (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 (e.g. medical treatment beyond first aid, days away from work).  Recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.

A company must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless certain statutory exceptions apply.

It can be difficult to determine if a case is work-related. Where the source of exposure is not obvious, employers must evaluate the employee’s work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.  To be work-related, an employer must determine whether it is more likely than not that an event or exposure in the work environment caused or contributed to the illness, based on a totality of the circumstances, including the employee’s work duties and environment.

Employers have an obligation to take reasonable steps to determine if a COVID-19 illness is work-related.  In assessing whether the employer took reasonable steps, OSHA will consider: (1) the reasonableness of the employer’s investigation into work-relatedness; (2) the evidence available to the employer; and (3) the evidence that a COVID-19 illness was contracted at work.

OSHA has stated that employers should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness: (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential exposure.

OSHA’s guidance provided examples of when COVID-19 illness is most likely work-related and when it is less likely to be work-related:

• COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
• An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
• An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
• An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
• An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

If employers have made a reasonable and good faith inquiry by talking to the employee about sources of exposure and considering specific exposure risks of the workplace and have come to the conclusion that the employer cannot determine that it is more likely than not that the employee contracted COVID-19 from workplace exposure, employers do not need to record that specific COVID-19 illness.

Even if employers ultimately determine that a employee’s case of COVID-19 is not work-related, they still need to take appropriate steps to inform other employees of possible exposure, as necessary, and to adequately clean and disinfect the workplace.