The Occupational Safety and Health Administration (OSHA) announced in May 2020 changes to its COVID-19 recordkeeping requirements. This new guidance supersedes its previous March and April guidance for safeguarding the workplace against virus-related threats. The focus of the new guidance rests on whether a COVID-19 case is “work related.” OSHA now allows employers in all industries to determine whether employee COVID-19 illnesses are work-related and recordable.
OSHA Recordkeeping Requirements
OSHA requires employers record work-related injuries and illnesses on their OSHA 300 log. COVID-19 can be a recordable illness if an employee is infected as a result of performing work-related duties. Employers must record COVID-19 cases to OSHA if it is a confirmed case; is work-related; and involves one or more of the general recording criteria outlined by OSHA. The criteria consist of whether the case “results in death, days away from work, restricted work or transfer to another job, medical treatment beyond “first aid,” or loss of consciousness…”
Many sectors may have trouble complying with agency standards due to the COVID-19 pandemic. These include the required use of personal protective equipment (PPE) such as respirators or masks, or additional training to workers. OSHA has issued a temporary enforcement guide for respiratory protection; recording and reporting occupational injuries and illness; and audits, reviews, training, or assessments. OSHA will use discretion when enforcing requirements with small businesses. Widespread business closures, limitations on group sizes, and stay-at-home or shelter-in-place requirements may limit availability of employees or consultants who provide training, auditing, inspections, testing, and other essential safety and industrial hygiene services. It is also likely they may not have access to employees’ medical information, making it difficult for them to report it to OSHA.
Compliance Safety and Health Officers (CSHOs) have been directed to consider different factors when evaluating whether an employer has complied with its obligation to make a “reasonable determination of work-relatedness.” Factors include the following:
1. Reasonableness of the employer’s investigation into work-relatedness. Employers are not expected to undergo medical inquiries. It is sufficient that when an employer learns of an employee’s COVID-19 illness, employers may ask the employee how he or she contracted the COVID-19 illness, “discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and review the employee’s work environment for potential SARS-CoV-2 exposure.” According to OSHA, work environment is “the establishment and other locations where one or more employees are working or are present as a condition of their employment.” It includes physical locations, and equipment or materials used by an employee during his or her work.
2. Evidence available to the employer. The evidence a COVID-19 was work-related should be considered based on information “reasonably available to the employer at the time it made its work-relatedness determination.
3. Evidence that a COVID-19 illness was contracted at work. Certain types of evidence may weigh in favor of or against work-relatedness. Examples of such evidence includes the following:
a. COVID-19 illnesses are work-related when several cases develop among workers who work closely together and there is no other explanation.
b. An employee’s COVID-19 illness is likely work-related if his or her job duties include frequent and close exposure to the general public in a location with ongoing community transmission and there is no other explanation.
- c. An employee’s COVID-19 illness likely not work-related if his or her job duties do not include frequent contact with the general public, regardless of the rate of community spread.
- 4. If, after a reasonable and good faith inquiry is conducted and the employer is unable to determine whether it is more likely exposure in the workplace caused the COVID-19 illness, the employer does not need to record it.
Deciding Whether a Case is Work-Related When Employee Works at Home
Injuries and illnesses that occur when working at home are work-related if it occurs while the employee is performing work for pay or compensation in the home. The injury or illness must be directly related to performance of work rather than to the general home environment or setting. The employee’s work duties and environment should be evaluated to determine if the injury or illness is work-related when it is not obvious whether the event or exposure occurred away from work.
For the protection of worker health and safety, it is necessary employers evaluate COVID-19 cases among workers and respond appropriately. It benefits employees as well as your business to minimize the risk of transmission in the workplace. For more information about OSHA requirements, contact us, Whitcomb Selinsky PC has experienced attorneys ready to help you.