The U.S. Occupational Safety and Health Administration (“OSHA”) requires certain covered employers to record and report serious occupational injuries and illnesses in the workplace. Under OSHA’s rules and regulations, COVID-19 is considered a serious illness and subject to recording and reporting requirements if the illness is determined to be work-related.
However, many employers found it extremely difficult to assess whether an employee’s COVID-19 case was caused by exposure to the virus in the workplace. Due to the virus’s ease in spreading within the community (and across the globe), it proved nearly impossible to understand how to pinpoint where exposure had occurred.
In light of this difficulty, OSHA initially relaxed its recording and reporting rules by exempting most industries from having to determine whether employee cases of COVID-19 were work-related (and subject to recording and reporting), unless the evidence clearly showed that the case was work-related. OSHA stated that the exemption was meant to “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.”  The exemptions, however, did not apply to employers in the healthcare industry, emergency response organizations, and correctional institutions. Moreover, those employers in the healthcare industry, emergency response organizations, and correctional institutions were still without any guidance to determine whether employee cases were caused by exposure in the workplace.
On May 19, 2020, OSHA issued revised enforcement guidance for recording and reporting cases of COVID-19 in the workplace. Under this new guidance, which took effect May 26, 2020, all covered employers became subject to OSHA’s recording and reporting requirements for COVID-19. The change came as workplace COVID-19 cases began to appear in other industries beyond healthcare, emergency response, and correctional institutions. The changes were also based upon the increasingly well-known understanding and knowledge of transmission and spread of the virus and the reopening of various industries. These factors, OSHA stated, “indicate that employers should be taking action to determine whether employee COVID-19 illnesses are work-related and thus recordable.” 
Under the new guidance, all covered employers must record employee cases of COVID-19 if: (1) it is a confirmed case of COVID-19; (2) it is work-related; and (3) it involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.  In determining whether a case is work-related, employers should investigate and gather the facts reasonably available to it to evaluate where the exposure occurred. Employers are not required, however, to undertake extensive medical inquiries or interfere with an employee’s legitimate right to privacy. Rather, employers should have a conversation with the employee to gather information as to their work schedule, movements in the community, and the condition of their workspace/environment. If, based upon the facts and information obtained, the employer determines that it was more likely than not that the employee’s COVID-19 case was caused by workplace exposure, the employer must record or report the case (assuming that the case satisfies one or more of the general reporting criteria set forth in 29 CFR § 1904.7). If the employer is unable to determine that it was more likely than not that the exposure occurred at the workplace, the employer is not required to report or record the illness. However, there are certain types of evidence that may weigh in favor of or against a COVID-19 case being work related. Examples include when several cases develop among workers who work closely together or job duties that include frequent and close exposure to the public or to customers who test positive for COVID-19.
In some circumstances, covered employers must report COVID-19 work-related cases that result in death or in-patient hospitalization. There are strict deadlines in which the employer is required to report the case to OSHA. Employers should consult with an attorney promptly once they are made aware of a hospitalization or death of an employee with COVID-19.
Our firm has extensive experience counseling employers and businesses on workplace safety, regulatory compliance, and other employment matters. If you have any questions related to this legal briefing or questions related to your business’s OSHA recording and reporting requirements, please contact any member of our Firm at 585-730-4773.
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter discussed. Please consult an attorney to ascertain how the applicable law may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC