Is Your Employee’s Confirmed COVID-19 Diagnosis a Recordable Illness Under OSHA’s Recordkeeping Requirements?

On May 19, 2020, the Occupational Safety and Health Administration (OSHA) updated its enforcement guidance with respect to the recording of occupational illnesses, specifically cases of COVID-19.

Generally, under OSHA's recordkeeping requirements, employers are required to log a "recordable illness" on an OSHA Form 300. According to OSHA's updated guidance, an employee's positive COVID-19 diagnosis must be recorded if:

1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC); and
2. The case is "work-related"; and
3. The case involves one or more of OSHA's general recording criteria (i.e., death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant illness diagnosed by a licensed health care professional).

How Do Employers Determine If a Case Is Work-Related?
Naturally, the challenge for employers is how to determine whether a COVID-19 case is "work-related". Generally speaking, an employer must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. OSHA concedes that in many instances it is difficult to determine whether a COVID-19 illness is work-related, particularly because employees can be exposed to the virus both in and out of the workplace.

For this reason, OSHA will exercise its enforcement discretion to assess whether employers are making reasonable efforts to determine whether COVID-19 cases are work-related. OSHA recommends that employers undertake the following:

• Investigate: Upon learning of an employee's COVID-19 illness, the employer should 1) ask the employee how they believe they contracted the virus; 2) while respecting employee privacy, inquire about the employee's work and out-of-work activities that may have led to the COVID-19 illness; and 3) review the employee's work environment for potential exposure.
• Consider Up-To-Date Information: Whether a COVID-19 case is work-related should be considered based on information reasonably available to the employer at the time the work-relatedness determination is made. But OSHA cautions that if additional information later becomes available to the employer, including any evidence of causation pertaining to the employee's illness provided by medical providers, public health authorities, or the employee, then that information also should be taken into account.
• Assess Circumstances Suggesting that COVID-19 was Contracted at Work: According to OSHA, certain types of evidence may weigh in favor of or against work-relatedness, including the following:
  • An employee's COVID-19 illnesses is likely work-related:
    • If it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
    • If the employee's job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
  • Conversely, an employee's COVID-19 illness is likely not work-related if:
    • The employee is the only worker to contract COVID-19 in the vicinity and the employee's job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
    • If the employee, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who 1) has COVID-19; 2) is not a coworker, and 3) exposes the employee during the period when the associate is likely infectious.

If an employer conducts a reasonable and good faith inquiry consistent with OSHA's guidance, described above, but cannot determine whether it is "more likely than not" that exposure in the workplace was a cause of a particular case of COVID-19, the employer does not need to record that case. However, it remains important to the health and safety of employees, as well as public health, for an employer to respond appropriately to protect workers in the event of a positive COVID-19 diagnosis, regardless of whether a case is ultimately determined to be work-related. That response should be informed by up-to-date guidance from the CDC, as well as applicable state and local governments.

If you have questions about OSHA's guidance or other employment challenges related to COVID-19, please reach out to your Much attorney or a member of our Labor & Employment group.