By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On April 10, 2020, US OSHA partially retracted its initial instructions to employers, which had required employers to evaluate employees who contracted COVID‑19 as potential recordable occupational illnesses under OSHA’s injury/illness recordkeeping rules, 29 CFR Part 1904. According to its new “Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID‑19),” (Recording Guidance), in most cases, OSHA will not enforce its recordkeeping rules that otherwise would have required all employers to make determinations as to whether “workers who contacted COVID‑19 did so due to exposures at work.” However, OSHA did not retract its basic position that COVID‑19 “is a recordable illness,” which must be recorded as a work-related illness on OSHA 300 logs (or their equivalent) if: (1) the employee has a “confirmed case of COVID‑19” based on at least one positive test for the virus; (2) the COVID‑19 is “work-related,” per 29 CFR § 1904.5, i.e., the disease is contracted from exposure in the work environment; and (3) the case meets recording criteria, including a significant illness diagnosed by a healthcare professional or days away from work. Instead, OSHA recognized that in areas with community-spread of the coronavirus, most employers “may have difficulty” making determinations that COVID‑19 cases were due to exposures at work, so those employers would no longer have to affirmatively investigate whether the employee’s COVID‑19-positive diagnosis was work-related in order to avoid the risk of an OSHA enforcement action for a recordkeeping violation.
OSHA’s “enforcement discretion” towards an employer’s obligation to record COVID‑19 cases has several important caveats:
First, healthcare emergency response organizations, and correctional institutions (here, Non‑Exempt Employers) would continue to be required to determine whether an employee’s COVID‑19 diagnosis was due to workplace exposure.
Second, OSHA’s enforcement discretion apparently is limited to areas where there is community transmission of the virus.
Third, all employers would continue to be required to determine that an employee’s COVID‑19 diagnosis is a work-related case, if:
- “There is objective evidence that a COVID‑19 case may be work related [such as if] a number of cases develop among workers who work closely together without an alternative explanation” and
- The “objective evidence” is “reasonably available to the employer . . . [such as if] information [is] given to the employer by employees” or the employer learns information in the “ordinary course of managing its business and employees.”
If a case is recorded, the employer must keep the employee’s name confidential “if an employee voluntarily requests” that the employer do so. Although OSHA’s Recording Guidance does not expressly address OSHA’s requirement to report serious and fatal illnesses to OSHA, because the reporting requirement is triggered by hospitalizations or fatalities due to a “work-related incident,” if, in reliance on the Recording Guidance, an employer does not determine that the illness is a work-related case, it follows that the case also would not be a reportable case.
OSHA stated that it was granting this enforcement discretion in order to allow employers more time to focus on “good hygiene practices” and otherwise mitigating the effects of COVID‑19 in the workplace. This Recording Guidance supplements OSHA’s general guidance on COVID‑19 preparedness in the workplace and OSHA COVID-19 enforcement guidances issued to address certain aspects of its respiratory protection rules, as well as OSHA’s new workplace poster, entitled “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus.”