On May 19, 2020, the federal Occupational Safety and Health Administration (OSHA) issued Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) under the agency’s recordkeeping regulation at 29 C.F.R. § 1904, providing additional information on what employers are required to record in their OSHA 300 logs. Previous guidance, which OSHA issued on April 10, 2020, eliminated most employers’ (all industries except healthcare, emergency response organizations, and correctional institutions) obligation to analyze whether a COVID-19 case is work-related if certain conditions are met. The new guidance, which goes into effect on May 26, 2020, reinstates the duty to determine the work-relatedness of these cases.
OSHA still maintains the following three-step test for recording cases of COVID-19 under 29 C.F.R. § 1904:
- “[t]he case is a confirmed case of COVID-19, as defined by the [U.S.] Centers for Disease Control and Prevention (CDC)”;
- “[t]he case is work-related as defined by 29 CFR § 1904.5”; and
- “[t]he case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.”
OSHA justified the new guidance primarily on the slowing spread of COVID-19 in certain parts of the country. However, the agency conceded, “in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.”
Because of this difficulty, OSHA stated it will exercise “enforcement discretion to assess employers’ efforts in making work-related determinations,” and lists the following considerations for inspectors to apply:
- “The reasonableness of the employer’s investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.”
- “The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee’s COVID-19 illness, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.”
- “The evidence that a COVID-19 illness was contracted at work. CSHOs [compliance safety and health officers] should take into account all reasonably available evidence, in the manner described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness.” For example:
- “COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.”
- “An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.”
- “An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.”
- “An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.” (Emphasis added.)
- “An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates 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.” (Emphasis added.)
- “CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.”
If the employer cannot determine, after this “reasonable and good faith inquiry,” whether “it is more likely than not that an exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”
- It is reassuring to see OSHA confirm the fact that a one-person outbreak of COVID-19 at a workplace is likely not work-related, as most employers concluded.
- The continued use of the phrase “no alternative explanation” may create confusion for an employer’s analysis. While it is not a leap of logic to conclude two or more employees may have contracted COVID-19 from each other, it is also plausible in many areas where infection rates remain elevated that employees could have contracted COVID-19 at the grocery store, from a relative who is also working outside the home, or from a jogger who passed them on the sidewalk with less than six feet of clearance. All of these are plausible “alternative explanations.” With medical acknowledgment that many cases of COVID-19 are asymptomatic and never diagnosed, some employers may realistically find it difficult to determine how and where employees became infected.
Under the fifth “reasonable and good faith inquiry” factor regarding the work-relatedness of a COVID-19 diagnosis, apparently, if two coworkers are “close friends” and are in a social setting after work, OSHA’s guidance dissuades the employer from concluding the case is not work-related.
- The new guidance expressly creates a “more likely than not,” preponderance-of-the-evidence (greater than 50 percent) requirement for a case to be considered work-related. This is not a surprise or cause for alarm. If OSHA were to issue a citation that the employer contested, the agency would have to establish the existence of the violation by a preponderance of the evidence.