Labor & Employment Alert: OSHA Now Requiring All Employers with More than 10 Employees to Determine if COVID-19 Cases are Work-Related

In the ever-changing world that is COVID-19, the Occupational Safety and Health Administration (OSHA) published Revised Enforcement Guidance for Recording Coronavirus Disease 2019 (COVID-19) on May 19, 2020. This new guidance rescinds OSHA’s prior guidance from April 10 on the same subject, which limited the obligation to making work-related determinations on whether a worker contracted COVID-19 to the healthcare industry, emergency response organizations, and correctional institutions. In the April 10, 2020 directive, OSHA stated that it would not enforce 29 CFR § 1904 to require other employers to make the same work-related determination, except where there was objective evidence that a COVID-19 case was work-related or where the evidence was reasonably available to the employer, such as information given to the employer by employees.

Effective May 26, 2020, OSHA will be again enforcing 29 CFR § 1904 and requiring that employers with ten or more employees make a determination whether an employee’s confirmed case of COVID-19 is a recordable illness. Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness if:

1. The case is a confirmed case of COVID-19, as defined by the CDC;
2. The case is work-related as defined by 29 CFR § 1904.5; and
3. The case involves one or more of the general criteria set forth in 29 CFR § 1904.7.

An illness is work-related under 29 CFR § 1904.5 if an event or exposure in the work environment either causes or contributes to the resulting condition. The general criteria set forth in 29 CFR § 1904.7 that would make the illness recordable is if the exposure resulted in death, days away from work, restricted work, or medical treatment beyond first aid.

As of May 26, 2020 and until further notice, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee COVID-19 illnesses according to the following guidelines and will consider the following information:

1. The reasonableness of the employer’s investigation into work-relatedness. In most cases it will be sufficient for an employer when it learns of an employee’s COVID-19 illness to ask the employee how they believe they contracted the virus, discuss with the employee their outside or work activities that may have led to the exposure, and review of the employee’s work environment, which should be informed by any other instances of workers in the same environment contracting the virus.
2. The evidence available to the employer. The evidence that a COVID-19 illness is work-related should be considered based on the information reasonably available to the employer at the time it made its decision as to the work-relatedness of the illness. And if an employer later learns of other information related to an employee’s COVID-19 illness, then that information should also be taken into account in evaluating whether the original determination should be modified.

This new guidance sets forth certain types of evidence that may weigh in favor of or against work-relatedness, including:

• the illness is likely work-related when several cases develop among workers who work in close proximity to each other, and there is no alternative explanation.
• the illness is likely work-related if contracted shortly after lengthy, close exposure to a particular customer or co-worker who has a confirmed case of COVID-19, and there is no alternative explanation.
• the illness is likely work-related if the employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing transmission, and there is no alternative explanation.
• the illness is likely not work-related if the employee is the only worker to contract COVID-19 in the employee's vicinity, and his/her duties do not include frequent contact with the general public.
• the illness is likely not work-related if the employee, outside the workplace, closely and frequently associates with a family member, significant other, or close friend who (1) has COVID-19; (2) is not a co-worker; and (3) exposes the employee during the period in which the individual is likely infectious.

Since these are the guidelines compliance officers will be looking at when evaluating whether employers make reasonable determinations on whether to record employee COVID-19 illnesses on the employer’s OSHA 300 logs, employers would be well-served in following these same guidelines in making their own determinations as to recordability.