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With COVID-19 cases on the rise across the United States, employers may find themselves wondering how to comply with their OSHA recordkeeping and reporting obligations. On March 10, 2020, OSHA provided guidance to employers related to recording and reporting workplace exposure to COVID-19. OSHA later clarified its guidance on March 13, 2020.

General duty to furnish a hazard-free workplace

There is no specific OSHA standard addressing COVID-19. However, there are OSHA standards in place, such as the General Duty Clause, that may apply to preventing workplace exposure to COVID-19. The General Duty Clause, set forth in Section 5(1)(a) of the Occupational Safety and Health Act of 1970, requires employers to furnish each employee with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” See 29 U.S.C. 654(a)(1). OSHA has published guidance on how employers should prepare their workplaces for COVID-19. That guidance may be found here. Please keep in mind that there may be other OSHA standards/regulations applicable to your specific industry that are impacted by COVID-19.

Under what circumstances are employers required to record cases of COVID-19?

OSHA recordkeeping requirements dictate that covered employers record certain work-related injuries and illnesses on their OSHA 300 Log if the injury or illness meets OSHA’s general recording criteria (i.e., results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness or significant illness diagnosed by a physician.) See 29 C.F.R. Part 1904. Thus, an employer must determine whether an employee’s exposure to COVID-19 is an: (1) illness; (2) that is work-related; and (3) that meets the general recording criteria.

Is COVID-19 an illness?

OSHA has determined that a confirmed case of COVID-19 is considered an “illness” for recordkeeping purposes, see the OSHA standards here.   A symptomatic employee will not necessarily trigger any recordkeeping requirements. The employer needs to determine whether an employee’s case of COVID-19 is confirmed.

Is the confirmed case of COVID-19 work related? 

If an employee has a confirmed case of COVID-19, the employer needs to analyze whether the illness is “work-related.” An illness such as COVID-19 is “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.” See 29 C.F.R. § 1904.5(a). OSHA presumes work-relatedness for illnesses “resulting from events or exposures occurring in the work environment” unless certain exceptions apply. Id. One such exception applies when the illness involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure. See 29 C.F.R. § 1904.5(a).

Employers will need to evaluate “work-relatedness” on a case-by-case basis. This may involve, among other things, evaluating the type of workplace environment, risk of person-to-person COVID-19 transmission, and whether others in the workplace have presented with cases or symptoms of COVID-19.

Does the work-related confirmed case of COVID-19 meet the general recording criteria?  

If the employer determines that an employee’s confirmed case of COVID-19 is work-related, then the employer must determine whether the illness meets OSHA’s general recording criteria (i.e., resulted in 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 physician or other healthcare professional.) See 29 C.F.R. § 1904.7(a).  It is likely that COVID-19 will result in days away from work due to the need for isolating those who are infected. COVID-19 may also result in medical treatment beyond first aid or even death in some cases. Thus, most confirmed cases of COVID-19 will likely satisfy this element of the recordkeeping analysis.  

Assuming all three conditions discussed above are met, an employee’s COVID-19 illness should be recorded on the employer’s OSHA 300 Log as well as the OSHA Form 301.

When must a case of COVID-19 be reported to OSHA?

Employers must report any confirmed case of COVID-19 that is work-related directly to OSHA if it results in a fatality or in-patient hospitalization of one or more employees. See 29 C.F.R. § 1904.39. An employer is only obligated to report fatalities that occurred within 30 days of the work-related incident leading to the illness. Similarly, an employer must only report an in-patient hospitalization if it occurred within 24 hours of the work-related incident that led to the illness. Employers must report any qualifying worker fatality within 8 hours and any qualifying in-patient hospitalization of a worker within 24 hours.

If you have questions or need further guidance, please contact the author or any other member of DeWitt’s Employment Relations Practice Group.