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OSHA Revises Requirements for How to Record COVID-19 Cases

Stephanie Salmon

The Occupational Safety and Health Administration (OSHA) has adopted revised policies for enforcing workplace safety and health requirements as states throughout the country begin lifting stay-at-home restrictions and workplaces reopen. Additionally, OSHA has started increasing in-person inspections at all types of workplaces, with a priority on COVID-19 inspections. One key change includes an updated memorandum for recording cases of COVID-19.

Employers are responsible for recording cases of COVID-19, if:

  • The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC).
  • The case is work-related as defined by 29 CFR §1904.5.
  • The case involves one or more of the general recording criteria set forth in 29 CFR §1904.7 – death, days away from work, restricted work or transferred to another job, medical treatment beyond first aid, or loss of consciousness.

OSHA will exercise its enforcement discretion to assess employers’ efforts in making work-related determinations. When an employer learns of an employee’s COVID-19 illness, the employer must launch an investigation to determine whether the COVID-19 case is work-related and should, at a minimum:

  • Ask the employee how they believe they contracted the COVID-19 illness.
  • While respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness.
  • Review the employee’s work environment for potential COVID-19 exposure.

The memorandum explains that after a reasonable and good faith inquiry, if the employer cannot determine whether it is more likely than not that 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.

The memorandum instructs Compliance Officers to consider the following questions when determining whether an employer has complied with its recording obligation:  Whether several cases of COVID-19 developed among workers who work closely together and there is no alternative explanation; whether the employee’s COVID-19 illness was contracted shortly after lengthy, close exposure to a particular co-worker; and, an employee’s COVID-19 illness is likely not work related if he or she (1) is the only worker to contract COVID-19 in his or her vicinity and those job duties do not include frequent contact with the general public; and (2) frequently associates with someone outside of the workplace who has COVID-19, is not a coworker, and exposes the employee during a period in which the individual is likely infectious.

Under this new guidance, metalcasters cannot just assume that an employee’s COVID-19 illness is not work related. Rather, employers must undertake a good faith investigation regarding whether the workplace played a causal role in the employee’s COVID-19 illness.