OSHA issues recordkeeping guidance for COVID-19



April 14, 2020

OSHA Alert

Author(s): Benjamin J. Kim, Maritza Martin

As essential businesses continue to operate and COVID-19 persists on a global level, employers are left with questions regarding how to fulfill their recordkeeping obligations under the Occupational Safety and Health Act (OSHA).

As essential businesses continue to operate and COVID-19 persists on a global level, employers are left with questions regarding how to fulfill their recordkeeping obligations under the Occupational Safety and Health Act (OSHA). OSHA already issued guidance declaring that COVID-19 will not be treated like the flu or common cold, neither of which needs to be recorded on an OSHA 300 form even if they are work-related exposures. Recently, OSHA issued interim guidance clarifying further when COVID-19 is a recordable illness under OSHA’s recordkeeping requirements. Pursuant to OSHA regulations, COVID-19 is recordable on an OSHA 300 log, if all of the following apply.

  • There is a confirmed COVID-19 case (defined as an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19);
  • The exposure is 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); and
  • It involves one or more of the “general recording criteria,” which means that it results in:
    • Death,
    • Medical treatment beyond first aid,
    • Restricted work or transfer to another job,
    • Loss of consciousness,
    • Days away from work, or
    • A significant injury or illness diagnosed by a physician or other licensed health care professional.

With respect to the second issue of determining work relatedness, it is often unclear whether an employee contracted COVID-19 due to occupational exposure, especially in industries other than health care, emergency response, and correctional institutions. OSHA, however, will not enforce its recordkeeping requirements to require employers to make determinations regarding the work-relatedness of COVID-19 cases, except where (i) there is objective evidence that a COVID-19 case may be work-related and (ii) the evidence was reasonably available to the employer.

OSHA’s interim guidance says that objective evidence could include a number of cases developing among workers who work closely together without an alternative explanation. 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.

Employers should keep in mind that not all confirmed COVID-19 cases are recordable even if the diagnosis is confirmed, and it is work-related. Despite the fact that a confirmed diagnosis of COVID-19 initially may seem like a “significant injury or illness diagnosed by a physician or other licensed health care professional,” not all people with COVID-19 develop a serious illness. Pointing to the other “general recording criteria” above, such as inability to work or medical treatment beyond first aid, can help determine whether a COVID-19 case rises to the level of seriousness required for recording on an OSHA 300 log.

As a reminder, COVID-19 is a respiratory illness, and according to the interim guidance should be coded as such on the OSHA Form 300. In addition, employers should keep in mind privacy considerations. OSHA regulations permit employers to omit the employee’s name if he or she voluntarily requests that their name not be entered on the log. 29 CFR § 1904.29(b)(7)(vi).

Despite the interim guidance, employers may still have questions regarding COVID-19 and OSHA recordkeeping regulations and, thus, should consult with counsel on such questions.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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