On Tuesday, May 19, 2020, the Occupational Safety and Health Administration (OSHA) issued new enforcement guidance regarding an employer’s obligation to record cases of COVID-19 on the OSHA injury and illness logs. The new guidance takes effect Tuesday, May 26, 2020, and will supersede OSHA’s previous guidance that was issued on April 10, 2020.  

Under the new guidance, the key question remains whether a case of COVID-19 is “work-related.” As with the previous guidance, OSHA continues to acknowledge that it will be difficult to establish that a particular COVID-19 case is work-related “especially when an employee has experienced potential exposure both in and out of the workplace”—but the new guidance does place additional obligations on most non-healthcare employers to conduct this analysis and to make a reasonable determination.

OSHA’s COVID-19 Recordability Test

OSHA’s recordkeeping rules apply to injuries or illnesses. As COVID-19 began to spread across the country, OSHA confirmed that COVID-19 can be a recordable illness if a worker is infected as a result of performing work-related duties. However, OSHA’s original guidance from April 2020 directed that most non-healthcare employers did not need to determine “work-relatedness” of COVID-19 cases—and therefore did not need to record them—unless the employer had “objective evidence” that the cases were work-related. Under the new guidance, OSHA affirms that COVID-19 may be a recordable illness, and now states that all employers—including non-healthcare employers—are responsible for conducting a reasonable analysis of COVID-19 cases and recording cases of COVID-19, if:

1. The case is a confirmed case of COVID-19 (as opposed to an employee exhibiting symptoms but not diagnosed with the virus), as defined by the Centers for Disease Control and Prevention (CDC);¹
2. The case is “work-related”—i.e., an event or exposure in connection with the employee’s work either caused or contributed to the COVID-19 case; and
3. The case involves one or more of the general recording criteria, including, among others things, death; days away from work; or restricted work or transfer to another job.

The New Guidance on Whether COVID-19 Cases are Work-Related

As noted, OSHA’s prior guidance (which remains in effect through May 26, 2020) created different paths for different types of employers regarding the recording of COVID-19 cases. The first framework was for healthcare employers, emergency response organizations, and correctional facilities. The second framework was for all other employers. Under the revised guidance, in determining whether employers have complied with their recordkeeping obligations, OSHA will consider the following:

The reasonableness of the employer’s investigation into work-relatedness.

Employers are not expected to undertake extensive medical inquiries, given privacy concerns and most employers’ lack of medical expertise. However, in most circumstances, employers should complete the following steps when they learn of a COVID-19 case:

1. Ask the employee how they believe they contracted the illness;
2. Discuss with the employee, while respecting privacy concerns, the activities both inside and outside of work that may have led to the illness, and
3. Review the employee’s work environment for potential COVID-19 exposure. 

The review of the work environment will primarily be focused on other instances of workers who contracted COVID-19, and the circumstances surrounding those other cases. An employer’s implementation and enforcement of steps to address the spread of COVID-19 in the workplace consistent with guidelines from the CDC and OSHA (including, for example, the use of face coverings, social distancing, and cleaning procedures) may also be a consideration in the employer’s analysis of work-relatedness.

The evidence available to the employer.

OSHA’s updated guidance recognizes that an employer cannot know everything about a particular employee’s exposure, and that a determination as to whether a COVID-19 case is work-related should be based on information reasonably available to the employer at the time it made the determination.If the employer later learns more information related to an employee’s COVID-19 illness, however, OSHA may use that information to evaluate whether the employer made a reasonable work-relatedness determination.

The evidence that a COVID-19 case was contracted at work.

OSHA specifically recognizes that the difficulty of determining whether a COVID-19 illness is work-related and acknowledges that there is no formula for determining work-relatedness. With this in mind, OSHA will look for certain types of evidence that weigh in favor or against work-relatedness. OSHA’s updated guidance provides that COVID-19 illnesses may be work-related when, for example:

• Several cases develop among workers who work closely together and there is no alternative explanation.
• It is contracted shortly after a lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
• The employee’s job duties include frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

On the other hand, OSHA provides that COVID-19 illnesses are likely NOT work-related when:

• The employee is the only worker to contract COVID-19 in the vicinity and the worker’s job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
• The employee, outside the workplace, closely and frequently associated 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 in which the individual is likely infectious.

Further, OSHA will also give weight to evidence of causation from the employee, the employee’s medical providers, and the public health authorities where that information is available.

If, after making a reasonable inquiry under the factors outlined above, an employer cannot determine whether it is more likely than not that the COVID-19 case is work-related, then the employer does not need to record the illness.

The Bottom Line

OSHA’s new guidance creates a single framework for recording work-related cases of COVID-19 for all employers with recording obligations under OSHA’s recordkeeping rule, imposing greater obligations for the vast majority employers outside the healthcare, emergency response, and correctional facility context. The key for all employers will be to conduct a reasonable and objective evaluation of work-relatedness and to then make the appropriate determination.   

Employers with questions about applying OSHA’s new framework for work-relatedness and recording cases of COVID-19 should consult legal counsel.