OSHA Reverses Course on COVID-19 Recordkeeping Requirements

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By: Eric J. Wu, Esq.

On May 19, 2020, the Occupational Safety and Health Administration (“OSHA”) issued a memorandum that increased recordkeeping and reporting requirements related to COVID-19.[1] The new memo reversed OSHA’s previous stance, which had relaxed an employer’s obligation to record cases of COVID-19 in the workplace.[2] The new guidance becomes effective on May 26, 2020. It is meant as a temporary measure during the COVID-19 pandemic.

All Employers Must Report Work-Related COVID-19 Cases Resulting in Death or Hospitalization

The memo clarifies that all employers (regardless of size) must investigate whether an employee’s COVID-19 infection is work-related, if the infected employee dies or is hospitalized.[3] If the COVID-19 infection is work-related, then it must be reported to OSHA.

In cases where an employee does not die or become hospitalized, certain businesses do not have to record the illness or report to OSHA. Among the exempt are businesses with 10 or fewer employees and businesses in partially-exempt industries.[4]

When to Record COVID-19 Cases

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness. Thus, employers who are covered by OSHA are responsible for recording COVID-19 cases if:

  • There is a confirmed case of COVID-19[5];
  • The case is work-related[6]; and
  • The case is recordable under OSHA standards.[7]

Employers who fail to comply with these rules may be assessed fines and penalties. As discussed above, certain businesses are exempt from OSHA’s recordkeeping requirements.

Factors OSHA Will Consider

To determine whether an employer has complied with its obligations, OSHA will consider the following factors:

  • Reasonableness of the employer’s investigation into work-relatedness;
  • Evidence available to the employer; and
  • Evidence that a COVID-19 illness was contracted at work.

There are no bright-line rules on whether specific evidence points to work-relatedness, but OSHA’s memo provided some examples.

Examples of evidence that COVID-19 is work-related:

  • Several cases develop among workers who work closely together, and there is no alternative explanation.
  • COVID-19 is contracted shortly after prolonged, close exposure to a customer or coworker who has a confirmed case of COVID-19, and there is no alternative explanation.
  • An employee’s job duties include having frequent, close exposure to the general public where there is ongoing community transmission, and there is no alternative explanation.

Examples of evidence that COVID-19 is not work-related:

  • Only one worker contracts COVID-19, and that employee’s job duties do not involve frequent contact with the public, regardless of the rate of infection in the community.
  • A worker closely and frequently associates with someone outside of the workplace, such as a family member or friend who: (1) has COVID-19; (2) is not a coworker; and (3) was in contact with the worker while infectious.

If an employer makes a reasonable, good-faith effort to determine whether exposure was work-related, yet the employer still cannot determine whether the exposure was work-related, then the employer does not need to record that specific instance of COVID-19.

Best Practices

Effectively, all employers must monitor their employees for COVID-19 for symptoms and confirmed infections. Where an employee becomes infected and is hospitalized or dies, every employer is required to investigate and determine whether the infection was work-related. Employers should carefully document all information relied upon in investigating and determining whether employee cases of COVID-19 are work-related.

Businesses that are exempt from OSHA’s recordkeeping requirements are not legally required to record or report cases where an infected employee is not hospitalized or does not die. However, the best practice is to investigate and take measures to protect the workforce and workplace.

Employers should consult legal counsel for guidance on OSHA’s increased requirements and how to conduct an effective investigation to determine whether a COVID-19 infection is work-related.

If you have any questions regarding OSHA, or any other employment-related legal issue, please contact Eric J. Wu.

Eric Wu is a Partner in Leech Tishman’s LAX office, which is located in El Segundo, California. He practices in the firm’s Employment, Litigation, and Corporate Practice Groups. He can be reached at 424.738.4400 or ewu@leechtishman.com.

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[1] www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19

[2] In its April 10, 2020 memorandum, OSHA reduced its reporting requirements related to COVID-19 infections. In that memo, OSHA required reporting only where: (1) there was objective evidence that a COVID-19 case might be work-related; and (2) the evidence was reasonably available to the employer.

[3] OSHA’s guidelines have always required employers to report all work-related COVID-19 cases that result in hospitalization or death; 29 CFR Sections 1904.1 subd. (a)(1) and 1904.2.

[4] See www.osha.gov/recordkeeping/ppt1/RK1exempttable.html.

[5] A confirmed case of COVID-19 means an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19. See www.cdc.gov/coronavirus/2019-ncov/php/reporting-pui.html.

[6] See 29 CFR Section 1904.5.

[7] Under OSHA’s regulations, an employer must record injury or illness if it results in death, time off work, restricted work, transfer to another job, medical treatment beyond first aid, or loss of consciousness. See www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.7.