Obliging OSHA: How New COVID-19 Guidance Impacts Employers’ Workplace Recordkeeping and Reporting Obligations
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PLEASE NOTE IMPORTANT UPDATE: On May 19, 2020, the Occupational Safety and Health Administration (“OSHA”) issued new guidance advising employers of a significant change in recording requirements when employees contract COVID-19, clarifying that all employers who are required to maintain OSHA injury and illness logs (often referred to as OSHA 300 Logs) must record work-related cases of COVID-19. While OSHA acknowledges the inherent difficulty in determining whether an employee’s COVID-19 infection is work-related, the new guidance emphasizes that employers must make “reasonable efforts” to do so using the “information reasonably available.” To view our May 20 blog post on the new guidance, click here.

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The COVID-19 pandemic has wrought a series of profound changes to the American workplace, including the fact that the life-threatening virus has now been added to the list of recordable illnesses for covered employers under applicable regulations of the Occupational Safety and Health Administration (“OSHA”).  In turn, one of the biggest challenges facing many human resources departments in recent weeks has been determining whether an employee who has tested positive for COVID-19 was exposed in the workplace—which exposure must be recorded and potentially reported[i] to OSHA—or in the community at large, which does not trigger these regulatory obligations. 

In an April 10, 2020 Enforcement Memorandum, OSHA acknowledges that determining whether an employee was exposed in the workplace or elsewhere can be difficult—if not impossible—in areas where there is ongoing community transmission.  Accordingly, the guidance confirms that OSHA will not enforce the recording and reporting requirements against employers (other than those in the healthcare industry, emergency response organizations, and correctional institutions) with respect to COVID-19 unless (1) there is objective evidence that a COVID-19 case may be work-related (i.e., a number of cases developing among employees who work closely together without an alternative explanation), and (2) the evidence was reasonably available to the employer.  “Reasonably available evidence” includes information given to the employer by employees and information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.

On the other hand, employers in the healthcare industry, emergency response organizations (i.e. emergency medical, firefighting, and law enforcement services), and correctional institutions, cannot take any comfort in the relaxed enforcement methodology described in the April 10, 2020 Enforcement Memorandum.  They will still need to make work-relatedness determinations in accordance with the OSHA regulations.

An employer is obligated to record COVID-19 related activity in its OSHA 300 Log if: (1) an employee has a confirmed case of COVID-19; (2) the case is work-related as described below; and (3) the case involves one or more of the following: (i) death; (ii) days away from work; (iii) restricted work or transfer to another job; (iv) medical treatment beyond first aid; (v) loss of consciousness; or (vi) a significant injury or illness diagnosed by a physician or other licensed health care professional. 

In complying with OSHA’s requirements, employers should keep in mind that an illness like COVID-19 is characterized as work-related, and therefore reportable to OSHA, if an event or exposure in the work environment either caused or contributed to it or aggravated a pre-existing injury or illness.  The “work environment” includes the establishment and other locations where one or more employees are working or are present as a condition of their employment, and includes equipment and materials used by the employee during the course of his or her work, such as contaminated supplies.  So, if an employee contracted COVID-19 in a factory, or from tools shared with an infected person, then the exposure is deemed to have occurred in the “work environment.”

Additionally, the work event or exposure need only be one of the causes—it does not need to be the sole or predominant cause.  Whether an illness is work-related is a highly fact-specific determination with no bright line rule.  Employers also need to keep in mind that while an illness resulting from an exposure in the work environment is presumed to be work related, and must be recorded (and possibly reported,) several exceptions[ii] may also apply.

As a starting point, an employer attempting to determine if the employee’s infection with COVID-19 was work-related should first review and evaluate the employee’s work duties and typical work environment in an effort to ascertain whether one or more events or exposures in the work environment may have caused or contributed to the employee becoming ill with COVID-19.  This process, which should include remote interviews with employees who have recently tested positive, will also assist the employer in tracing potential workplace exposures and expediting any recommended sanitization or cleaning processes consistent with Centers for Disease Control (“CDC”) guidance.

In the case of COVID-19, the only likely exemption from the recording requirement would be if the employee’s exposure occurred outside of the work environment.  However, establishing where an employee was exposed can be extremely difficult with COVID-19 due to the number of asymptomatic carriers and the potentially lengthy incubation period of the virus as has also been documented by the CDC.  These circumstances can make it extremely difficult to pinpoint and track when or where exposure occurs.

As for OSHA’s mandatory reporting obligation that a work-related injury that results in an in-patient hospitalization within 24 hours be reported, the incubation period of the virus as noted above makes it extremely unlikely that an isolated exposure in the workplace will trigger this requirement.  However, such hospitalization may still be subject to recording requirements even if it occurs more than 24 hours from exposure.  Furthermore, if a workplace related COVID-19 exposure results in death, then the employer must report the death to OSHA within 8 hours of learning of the death or making the determination that it was workplace-related.

Although no two scenarios are the same, employers can look to OSHA’s past Letters of Interpretation for general guidance in making work-relatedness determinations.  Employers should also ensure that they are being diligent in documenting these decisions, so that in the event of a controversy there is sufficient evidence to support the approach taken.  Because the analyses and decisions related to COVID-19 need to be made quickly, employers should prioritize implementing appropriate policies, systems, and training to address these obligations if they have not already done so.

The lawyers at Pullman & Comley are dedicated to assisting employers in ensuring compliance with these and other COVID-19 related requirements, and we have policy templates and other useful resources available.

Please contact any of our Labor and Employment Law or Health Care attorneys if you have any questions. 


[i] If an employer is required to report a potential workplace exposure to OSHA, the report must be made within 8 or 24 hours depending on the specific facts and circumstances involved.  29 CFR 1904.39(a)(1) and (a)(2).  In addition, in most instances, once an employer learns of an in-patient hospitalization or death that occurs as a result of a work-related incident, this information must also be reported to OHSA within 24 hours or 8 hours, respectively.  29 CFR 1904.39(b)(8).  There is one exception to this general rule, which is that an employer is not required to report an inpatient hospitalization if such hospitalization occurs more than 24 hours after the work-related incident. 29 CFR1904.39(b)(6).

[ii] The exceptions to the general rule that an exposure in the work environment is presumed to be work related apply to the following situations:

(i) At the time of the injury or illness, the employee was present in the work environment as a member of the general public rather than as an employee;

(ii)  The injury or illness involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment;

(iii)  The injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activity;

(iv)  The injury or illness is solely the result of an employee eating, drinking, or preparing food or drink for personal consumption (whether bought on the employer's premises or brought in);

(v)  The injury or illness is solely the result of an employee doing personal tasks (unrelated to their employment) at the establishment outside of the employee’s assigned working hours;

(vi)  The injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted;

(vii) The injury or illness is caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work;

(viii) The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work);

(ix)  The illness is a mental illness.

Posted in COVID-19

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