While OSHA’s website contains a wealth of information for employers on how to deal with COVID-19, including a very helpful 32-page Guidance on Preparing Workplaces for COVID-19, OSHA was strangely silent on whether COVID-19 was a recordable work-related illness until last Friday.
Most OSHA lawyers with whom I discussed the issue agreed that if a doctor or nurse who was treating COVID-19 patients became infected and missed work, it would be advisable for their employer to treat it as a recordable illness and document the lost time on their OSHA 300 logs. Similarly, if a health care worker with frequent exposure to COVID-19 patients were to die as a result of a confirmed COVID-19 infection, most agreed that the employer should consider reporting the fatality to OSHA within the required eight hours.
Nevertheless, it was still not completely clear if recording or reporting these illnesses was required by the regulations. On one hand, instances of the common flu are not recordable under the regulations, even though many people probably catch the flu each year from someone at work. On the other hand, diseases such as tuberculosis and Hepatitis A are recordable if employees are infected at work.
An even more difficult question was whether employers had a duty to record or report COVID-19 infections for employees who don’t work in high exposure workplaces like hospitals or morgues. What about the cashier at the grocery store, the warehouse worker, and the refinery worker who have been deemed essential and are still going to work? While they are less likely to come into contact with infected people with obvious symptoms, their chances of being exposed — perhaps to an asymptomatic carrier — are certainly greater than for those of us who are teleworking.
To its credit, in the Enforcement Guidance issued on April 10, 2020, OSHA acknowledged the distinction between workplaces that could be considered very high exposure risk (e.g., health care or emergency response organizations) and other workplaces where there is only a moderate or lower risk. With respect to the latter, OSHA announced:
Accordingly, until further notice, OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where: (1) There is objective evidence that a COVID-19 case may be work-related; and (2) The evidence was reasonably available to the employer.
This guidance leaves open the issue of what the objective evidence could be. Obviously, a single case in a workplace would not be indicative of a workplace infection. Is there a particular number (or percentage) of employees that would meet that threshold? Presumably, the location of the infected employees would be relevant as well in determining if there is objective evidence. For example, if there was a cluster of employees who worked closely together in one area of a plant who were infected, but no employees in other areas of the plant were infected, that might be sufficient objective evidence to justify recording or reporting. While many employers can take comfort that OSHA will not enforce its recordkeeping requirements to require them to make work-relatedness determinations, the nuanced guidance suggests that there will be situations where recording or reporting requirements could be triggered.
At least for now, many employers are likely to be excused from recording or reporting COVID-19 cases in the workplace because of the lack of testing and contact tracing information. If these programs become more robust in the coming months, we shouldn’t be surprised if OSHA revisits this guidance.
