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COVID-19 and OSHA’s Recordkeeping Requirements

Occupational Safety and Health Administration (“OSHA”) recordkeeping requirements at 29 CFR Part 1904 mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log forms.  On April 10, 2020, OSHA issued additional guidance for employers on their obligations to record COVID-19 cases.

Prior to this guidance, OSHA stated that COVID-19 cases may be recordable if a worker is infected as a result of performing work-related duties.  Therefore, employers would need to record COVID-19 cases if all of the following conditions are met:

1.         The case is a confirmed case of COVID-19;

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 (“such as medical treatment beyond first aid or days away from work”).

COVID-19’s contagiousness and other characteristics often makes it difficult to determine whether transmission resulted from workplace exposure, rather than exposure from family, external social gatherings, or a number of other reasons.  In the new guidance, OSHA states that employers in the healthcare industry, emergency response organizations, and correctional institutions must continue to make work-relatedness determinations. However, OSHA will not enforce its record keeping requirements for other employers to make the same work-relatedness determinations, except where:

1.         There is objective evidence that a COVID-19 case may be work-related; and

2.         The evidence was reasonably available to the employer.

The updated guidance offers as an example of objective evidence of work-relatedness: “a number of cases developing among workers who work closely together without an alternative explanation.” In addition, the updated guidance gives as an example of “reasonably available” evidence to the employer as “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.”

Continue to check OSHA and the Department of Labor for updated guidance and FAQ’s during this pandemic.