Locke Lord QuickStudy: OSHA Ends COVID-19 Recordkeeping Reprieve

The Occupational Safety and Health Administration (OSHA) has ended its suspension of the recordkeeping requirements for coronavirus (COVID-19) cases. Effective May 26, 2020, all employers subject to OSHA’s recordkeeping requirements must resume their obligation to record work-related exposures to COVID-19.

OSHA’s Prior Suspension of its Recordkeeping Requirements for COVID-19 Cases

In its Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), Occ. Safety & Health Admin. (Apr. 10, 2020), OSHA acknowledged the difficulties employers would face when trying to determine whether an employee’s exposure to COVID-19 was work-related and thus recordable. In an effort to “provide certainty to the regulated community and help employers focus their response efforts on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects[,]” OSHA suspended enforcement of its recordkeeping requirements for COVID-19 cases for most employers. Pursuant to that guidance, employers still had to record COVID-19 cases if (1) they had objective evidence that a COVID-19 diagnosis may be work-related and (2) the evidence was reasonably available to the employer.

OSHA’s suspension of the recordkeeping requirements did not apply to healthcare employers, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), or correctional institutions, all of whom had to continue making work-relatedness determinations.

OSHA’s Resumption of Recordkeeping Requirements and Guidance for Employers

Effective May 26, 2020, OSHA will no longer suspend its recordkeeping standard. However, pursuant to its Updated Enforcement Guidance for Recording Cases of Coronavirus Disease (COVID-19) (May 19, 2020), OSHA plans to “exercis[e] discretion to assess employers’ efforts in making work-related determinations.” OSHA will consider the following when making its assessments:

• The reasonableness of the employer’s investigation into work-relatedness. OSHA does not expect employers, especially small ones, to undertake extensive medical inquiries. In most cases, OSHA will consider it sufficient if employers  do the following when they learn of an employee’s COVID-19 affliction:
  • Ask the employee how he/she believes he/she contracted COVID-19;
  • Discuss (taking into account privacy considerations) with the employee his/her job and personal activities that may have led to his/her contracting COVID-19; and 
  • Review the employee’s work environment for potential virus exposure, taking into account any other instances of workers contracting COVID-19 in that environment.
• The evidence available to the employer. OSHA will consider which evidence the employer had reasonably available at the time it made its work-relatedness determinations. If the employer later is privy to more information related to an employee’s COVID-19 illness, OSHA also will consider that information to determine whether the employer made a reasonable work-relatedness determination.
• The evidence that a COVID-19 illness was contracted at work. OSHA has instructed its compliance officers to account for all reasonably available evidence (as described above) to determine whether an employer has complied with its recording obligations. OSHA indicates this consideration “cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness.” OSHA provided the following examples of exposures that are “likely work-related”:
  • Several cases develop among workers who work closely together and no alternative explanation exists.
  • The employee contracts COVID-19 shortly after lengthy, close exposure to a particular customer or co-worker who has a confirmed case of COVID-19 and no alternative explanation exists.
  • The employee’s job duties include frequent, close exposure to the public in a locality with ongoing community transmission challenges and no alternative explanation exists.

OSHA also offered the following examples of COVID-19 exposures that are “likely not work-related”:

• The employee is the only worker to contract COVID-19 in his/her work-related vicinity and his/her job duties do not include having frequent contact with the public, regardless of the rate of community spread.
• The employee, in non-work contexts, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who:

• has COVID-19;
• is not a coworker, and
• exposed the employee during the period in which the individual was likely infectious.

Pursuant to this updated guidance, OSHA will give due weight to any evidence:

• of causation;
• pertaining to the employee illness; and
• provided by medical providers, public health authorities, or the employee.

What Does this Mean for Employers?

According to OSHA, employers who undertake the investigative steps described above but who “cannot determine whether it is more likely than not that” the employee contracted COVID-19 due to a workplace exposure do not need to record the incident.  Regardless of whether the exposure was work-related, OSHA reminds employers of their obligations to protect their workforce if an employee has COVID-19.

Based on OSHA’s latest guidance, employers should conduct, to the extent feasible, investigations of COVID-19 cases as described by OSHA. Because OSHA continues to revise and update its guidance as circumstances regarding COVID-19 evolve, employers should also monitor OSHA’s website regularly to stay abreast of the latest developments.

Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of the legal issues related to COVID-19.