On May 26, 2020, the most updated interim guidance from OSHA to Compliance Safety and Health Officers (CSHOs) went into effect and will remain in place until further notice. These guidelines are meant to enforce the requirements of 29 CFR Part 1904 with respect to the recording of occupational illnesses, specifically cases of COVID-19.
Below, we summarize key points of the OSHA “Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)” in order to help business leaders understand the current recording landscape as it pertains to COVID-19 infection in the workplace.
Under OSHA's recordkeeping requirements, COVID-19 is a recordable illness. Therefore, employers are responsible for recording cases of COVID-19 if:
- the case is a confirmed case of COVID-19, as defined by the CDC
- the case is work-related as defined by 29 CFR § 1904.5
- the case involves one or more general recording criteria set forth in 29 CFR § 1904.7
OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee COVID-19 illnesses for all employers according to the guidelines. Employers should take immediate action to determine whether employee COVID-19 illnesses are work-related and thus recordable.
Recording a COVID-19 illness does not mean that the employer has violated an OSHA standard. Employers with 10 or less employees, and certain employers in low hazard industries, have no recording obligations except work-related COVID-19 illnesses that result in a fatality or an employee's in-patient hospitalization, amputation, or loss of an eye. Because of the difficulty with determining work-relatedness, OSHA is exercising enforcement discretion to assess employers' efforts in making work-related determinations.
In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, each CSHO should apply the following considerations:
- the reasonableness of the employer's investigation into work-relatedness
- the evidence available to the employer
- the evidence that a COVID-19 illness was contracted at work
COVID-19 illnesses are likely work-related:
- when several cases develop among workers who work closely together
- if contracted shortly after lengthy, close exposure to a customer or coworker who has a confirmed case of COVID-19
- if job duties include having frequent, close exposure to the public in a locale with ongoing community transmission
COVID-19 illnesses are likely NOT work-related:
- if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include frequent contact with the public, regardless of the rate of community spread
- if he, outside the workplace, associates with someone who 1) has COVID-19, 2) is not a coworker, and 3) exposes him during the period in which the individual is likely infectious
If, after the reasonable and good faith inquiries described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.
CSHOs will generally refer to CPL 02-00-135, Recordkeeping Policies and Procedures Manual (Dec. 30, 2004), and CPL 02-00-163, Field Operations Manual (Sept. 13, 2019), Chapters 3 and 6, as applicable. The following additional specific enforcement guidance is provided for CSHOs:
- COVID-19 is a respiratory illness and should be coded as such on the OSHA Form 300. Because this is an illness, if an employee voluntarily requests that his or her name not be entered on the log, the employer must comply as specified under 29 CFR § 1904.29(b)(7)(vi).
OSHA intends this guidance to be time-limited to the current COVID-19 public health crisis. Please visit www.osha.gov/coronavirus for updates.
United States Department of Labor, “Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19),” May 19, 2020