OSHA recently issued updated guidance on recordkeeping obligations and its enforcement plan for COVID-19, both of which go into effect on May 26, 2020. The most important takeaway from the updated enforcement plan is that OSHA is beginning to return to its normal operating procedure, which will include more in-person inspections and attention to non-healthcare employers moving forward. This update, however, focuses on the revised recording guidance, beginning with a summary of the new guidance and concluding with a set of our recommended best practices.
OSHA requires an employer to “record” on their OSHA 300 logs or “report” directly to OSHA when an employee has 1) a confirmed case of COVID-19, 2) that is work-related, and 3) meets the recording criteria of 29 C.F.R. § 1904.7 or reporting criteria of 29 C.F.R. 1904.39. When determining whether to report or record a positive COVID-19 employee, the most difficult question employers must answer is whether the illness is work-related.
Previous guidance, effective from April 10, 2020 to May 25, 2020, suggested that the requirement for non-healthcare employers to determine work-relatedness of a COVID-19 positive employee was eased somewhat by only requiring employers to record or report COVID-19-positive employees if “[t]here is objective evidence that a COVID-19 case may be work-related” and the “[e]vidence was reasonably available to the employer.” While there was reason to argue that the relaxed standard was no different than previous requirements, the practical effect was that compliance officers likely expected very little post-illness investigation from non-healthcare employers.
OSHA’s Revised Enforcement Guidance for Recording Cases of COVID-19 suggests that all employers, including both healthcare and non-healthcare employers, conduct a reasonable, good faith investigation to determine work-relatedness. Because it can be difficult, if not impossible, to determine whether an illness is work-related, OSHA is focused on the effort in the investigation rather than the actual outcome. OSHA suggests that employers take the following steps:
- Ask the employee how he believes he contracted the COVID-19 illness;
- 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
- Review the employee’s work environment for potential SARS-CoV-2 exposure.
It also proposes the following presumptions:
- 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.
- 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.
- Compliance officers [and the employer] 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.
While these presumptions do not appear to be based on any scientific or medical analysis, they are indicative of what compliance officers might expect if they review a facility’s records. In other words, they are open to challenge, but following them might prevent a citation in the first place.
In a sense, OSHA’s new guidance suggests that the means are more important than the end: regardless of whether the employer decides to report or record an illness, every employer should be able to articulate the nature of the investigation leading to its decision. The easiest way to explain an investigation to OSHA is to have a uniform system in place. Here are several recommendations to consider when establishing a system to investigate COVID-19 positive employees to determine whether the illness is work-related:
- The system should provide for a case-by-case review of each employee’s illness. Here are factors an employer might consider:
- Relevant dates (possibly including date of potential exposure, date symptoms began/ended, date of lab test(s), date of test result);
- The nature of any exposure at work (possibly including the length of the exposure, whether PPE was worn, and whether it was a high or low-risk exposure under CDC guidelines);
- The nature of any possible exposure outside of work;
- The prevalence of COVID-19 in the workplace (either in the workplace as a whole or the specific space in which the employee works);
- The prevalence of COVID-19 in the community.
- The investigation can take different forms. For example, it might be conducted entirely by the employer or by the employer conducting an initial evaluation and referring to a third party or workers’ compensation carrier to complete the investigation.
- Reasonableness and good faith underpin OSHA’s new guidance, which means that the strain on resources at a business should be considered when establishing a system. Many businesses are fighting absenteeism, supply chain challenges, and new protocols because of COVID-19. We recommend installing a system that is feasible in the employer’s current situation, even if it does not check every box OSHA mentions in the new guidance.
- The investigation into work-relatedness might overlap with similar investigations, such as the employer’s investigation into other employees who may have been exposed, per current CDC guidance.
- Even after investigating, an employer may not reach a conclusive determination as to whether the employee’s illness was work-related. If the employer cannot make a determination, OSHA’s guidance instructs the employer not to record or report the illness. If the employer believes the employee illness is probably work-related, but is not certain, we recommend reporting or recording out of an abundance of caution and including language in the 300 log or report stating that the investigation was inconclusive. This is particularly true if OSHA might be notified of positive employees, hospitalizations, or fatalities through the media.
- Remember that a report directly to OSHA is only required if the fatality occurs within 30 days after transmission of the virus (the relevant work-related incident) or hospitalization occurs within 24 hours after transmission. Because hospitalization does not usually occur quickly after transmission of the virus, an employer will rarely, if ever, be required to report an employee hospitalization for COVID-19.
- The investigation should be conducted and kept in a confidential manner. Generally, only the ultimate 300 log entry or report should be disclosed to OSHA.
Any COVID-19 case recorded on the OSHA 300 Log should be coded as a “respiratory illness” in column “M.” Additionally, COVID-19 cases should be recorded as a privacy concern case under 29 CFR 1904.29 if the employee voluntarily requests that his or her name not be entered on the log.
The guidance, criteria, and suggestions above are based on information available to date and are subject to change as we continue to learn more about the disease and the actions of governmental agencies.
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