Businesses required by the Occupational Safety and Health Administration (OSHA) to maintain a log of work-related injuries and illnesses—referred to as an “OSHA 300 Log”—must now pay additional attention to whether employee cases of COVID-19 are “work-related” and therefore recordable. As of May 26, 2020, OSHA has announced that its earlier enforcement guidance— exempting employers (except for those in certain high-risk industries) from recording cases of COVID-19 absent obvious indications of “work-relatedness”—will be rescinded and replaced with a revised enforcement guidance. Citing the slowed spread of coronavirus and workers “returning to their workplaces,” this revised enforcement guidance will require that employers again determine “whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19,” and is therefore recordable. ¹

Background

The question of whether COVID-19 is a reportable illness was a difficult question for employers back in March, when cases of coronavirus were surging in states across the United States. As detailed in a blog post on March 26, 2020, OSHA informed employers at the outset of the pandemic that cases of coronavirus were reportable where:

1. The case is considered “confirmed” under Center for Disease Control standards.
2. The case is “work-related,” which is satisfied where “an event or exposure in the work environment either caused or contributed to the resulting condition.”
3. The illness meets the general recording criteria, which requires, among other things, that an injury or illness result in “death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.” Additionally, the general recording criteria is met if it involves a significant illness diagnosed by a physician or other licensed health care professional.

Of course, OSHA received substantial pushback on this initial guidance because of the difficulty in determining “work-relatedness” with community transmission of COVID-19 continuing to rise. To address this concern, on April 10, 2020, OSHA issued a temporary enforcement guidance, recognizing that “[i]n areas where there is ongoing community transmission, employers … may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.” OSHA therefore stated that employers—with the exception of those in health care and other high-risk industries—would be excused from making the “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.
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.²

OSHA’s Revised Enforcement Guidance

In the revised enforcement guidance, OSHA has reverted to its position at the outset of the pandemic, and has again stated that employers must determine whether cases of COVID-19 are recordable by applying the three-part test and “work-relatedness” inquiry. However, OSHA has provided “enforcement discretion” to Compliance Safety and Health Officers in enforcing an employer’s obligation to record cases of COVID-19 under 29 CFR Part 1904. In particular, OSHA has noted that, after learning of an employee’s illness, employers will have made a sufficient work-relatedness inquiry in most circumstances by:

1. asking the employee how he or she believes COVID-19 was contracted;
2. discussing with the employee his or her work and out-of-work activities that may have led to the illness (while respecting employee privacy); and
3. reviewing the employee's work environment for potential exposure, while considering any other instances of workers in that environment contracting COVID-19.³

In addition, OSHA has identified several factors that weigh for or against a case being work-related. OSHA has noted that cases are likely work-related when “several cases develop among workers who work closely together”; COVID-19 “is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19”; or “the employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission”. ⁴ To the contrary, OSHA has observed that an employee's illness is likely not work-related if the employee “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,” or the employee “closely and frequently associates with someone [] 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.” ⁵

According to OSHA, if employers “cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19” after the aforementioned inquiries and considerations, than an employer may decide that a particular case of COVID 19 is not recordable. ⁶

Takeaways for Employers

In light of OSHA’s revised enforcement guidance, employers should ensure that they are able to demonstrate a reasonable and good faith “work-relatedness” inquiry after being apprised of an employee’s illness. OSHA’s enforcement guidance emphasizes a “good faith” attempt at compliance and recognizes that “it remains difficult to determine whether a COVID-19 illness is work-related.”⁷ Thus, OSHA may be inclined to show leniency towards employers with proof of a good-faith effort at compliance, regardless of whether it agrees with an employer’s ultimate determination of work-relatedness.

Employers should also remember that there is an obligation to directly notify OSHA—or the state occupational safety and health program—of certain serious work-related incidents, including cases of COVID-19. ⁸ Employers must apply the same “work-related inquiry” in determining whether cases are reportable directly to OSHA (or the state-equivalent to OSHA), and ensure that all such cases are reported within eight hours after the death of an employee, and within 24 hours after in-patient hospitalization. ⁹

¹ Id.
² Id.
³ Id.
⁴ Id.
⁵ Id.
⁶ Id.
⁷ Id.
⁸ 29 C.F.R. 1904.39(a).
⁹ Id.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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