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On April 10, 2020, the federal Occupational Safety and Health Administration (OSHA) issued interim enforcement guidance for recording cases of the novel coronavirus (COVID-19) under the agency’s recordkeeping regulation at 29 C.F.R. § 1904, affecting what employers are required to record in their OSHA 300 logs. The guidance clarifies which cases of COVID-19 are considered “work-related” under 29 C.F.R. § 1904, which means it also affects employer obligations for cases that must be reported to OSHA (e.g., in-patient hospitalizations). The guidance applies to all employers, except “those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions.”

The guidance eliminates an employer’s obligation to analyze whether a COVID-19 case is work-related if certain conditions are met. In general, COVID-19 can be a recordable illness if a worker is infected as a result of performing his or her work-related duties. OSHA previously stated that COVID-19 cases were analyzed like any other illness that may be work-related. Specifically, employers were responsible for recording cases of COVID-19 under OSHA’s recordkeeping rule (29 C.F.R. § 1904) when three requirements are met:

  1. “the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC);
  2. the case is work-related as defined by 29 CFR § 1904.5; and
  3. the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.”

A COVID-19 case must be reported to OSHA if: (1) it is a confirmed case; (2) it is work-related; and (3) the employee is hospitalized within 24 hours of the diagnosis for in-patient treatment or dies within 30 days of the diagnosis. See 29 C.F.R. § 1904.39.

OSHA’s latest guidance acknowledges that in areas where there is ongoing community transmission, “employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.” Therefore, “[u]ntil further notice, . . . OSHA will not enforce 29 C.F.R. § 1904 to require other employers to make the same work-relatedness determinations” unless the following conditions are met:

  1. “There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
  2. The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.”

[Emphasis added.]

Notably, these two criteria are conjunctive; both must be present. The term “objective evidence” under the first criterion is a broad term of art. As for the second criterion, the objective evidence must have been “reasonably available to the employer.” This could include, for example, workers’ compensation records and sick notes from doctors.

This guidance will reduce the number of COVID-19 cases that must be recorded on the OSHA 300 logs or reported to OSHA. When a case does meet the new criteria, employers should be mindful of privacy cases. Because COVID-19 is an illness, if an employee voluntarily requests that his or her name not be entered on the log, the employer must comply and treat it as a privacy case per 29 CFR § 1904.29(b)(7)(vi).

According to OSHA, the reason for the relaxed enforcement is so that employers can focus their efforts on mitigation efforts, rather than devoting resources to “making difficult work-relatedness decisions in circumstances where there is community transmission.”

As stated above, OSHA’s April 10 guidance does not apply to employers of workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions. Employers in those industries must continue to make work-relatedness determinations according to 29 C.F.R. § 1904.5 by determining if there was an event or exposure in the workplace that caused or contributed to the employee being infected. Under 29 C.F.R. § 1904.5(a), work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in 29 CFR § 1904.5(b)(2) applies.

Key Takeaways

Although OSHA’s policy change is laudable and realistic, one may well question whether it changes anything as a practical matter. Employers were never required to record a case of COVID-19 disease unless certain circumstances were present—which is the very policy now touted as new. The circumstances that required recording were objective evidence of the case’s work-relatedness (such as a number of cases among workers who work closely together, without an alternative explanation) and evidence that the employer had knowledge (for example, because employees gave the employer the relevant information or the employer learned of the case in the normal course of business).

OSHA seems to acknowledge that where one worker tests positive for COVID-19, absent some uncommon circumstances, most employers do not need to conduct an exhaustive (and intrusive) “work-relatedness” investigation to determine the cause of the employee’s infection. As OSHA notes, employer time is better spent on mitigation efforts.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.


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