OSHA Publishes Revised COVID-19 Recordkeeping Guidelines

On May 19, 2020, the Occupational Safety and Health Administration (OSHA) announced that it is rescinding its April 10, 2020 memorandum concerning an employer’s obligation to document an employee’s confirmed case of COVID-19.  OSHA is replacing that memorandum with a Revised Enforcement Guidance that becomes effective on May 26, 2020. 

OSHA regulations and the revised guidance require an employer to document an employee’s “confirmed” case of “work-related” COVID-19 if it involves one or more of the following:

• death,
• days away from work,
• restricted work or transfer to another job,
• medical treatment beyond first aid,
• loss of consciousness, or
• a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.

A “confirmed” case of COVID-19, as defined by the Centers for Disease Control and Prevention, is one where the infected employee has had at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19. 

A case of COVID-19 is “work-related” if an exposure in the work environment caused the illness.  OSHA expects employers to make a reasonable determination as to whether an employee’s infection with SARS-CoV-2 is, more likely than not, work-related.  OSHA’s revised guidance sets forth the following parameters for an employer’s determination: 

• An employer is not required to undertake “extensive medical inquiries.” It is enough that the employer ask the employee how they believe they contracted COVID-19 and what out-of-work activities may have caused their illness.  Employers should consider the employee’s responses in the context of potential SARS-CoV-2 exposure in the work environment, generally evidenced by whether any of the employee’s co-workers have reported a confirmed case of COVID-19.

• An employer must make their determination based on the information reasonably available to it at the time.  If an employer later learns additional information about the employee’s exposure that causes it to change its earlier determination, OSHA expects the employer to revise its documentation.
• The following factors weigh in favor of designating the infection as work-related, provided there are no alternative explanations:
• Several cases develop among workers who work closely together.
• The employee contracted COVID-19 shortly after lengthy, close exposure to a customer or co-worker who has a confirmed case of COVID-19.
• The employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission.
• The employee has had no close or frequent contact outside of the workplace with someone, not a co-worker, who has COVID-19 and who exposed the employee during the period in which that person was likely infectious.

If after the employer’s reasonable investigation, it cannot determine whether it is more likely than not that the employee’s exposure was work-related, then the employer does not need to record that COVID-19 illness on its OSHA Form 300.

If you have questions, please contact the author of this alert or your Butzel Long attorney.

Regan K. Dahle
734.213.3268
dahle@butzel.com