Butler Snow recently provided guidance for employers regarding OSHA’s illness recording requirements for employees who contract COVID-19. As discussed in that article, since only “work related” incidents must be recorded under OSHA regulations, a key challenge arises: it is nearly impossible for employers to delineate between “work-related” and “non-work-related” COVID-19 incidents. Recognizing this challenge, on April 10, 2020, OSHA issued additional guidance on what cases are to be considered “work-related.”
The stated purpose of the additional guidance is to allow employers to focus their efforts on implementing good hygiene practices and mitigating COVID-19’s effects, rather than on making difficult decisions on whether cases of COVID-19 are “work-related.” To that end, OSHA will not enforce 29 C.F.R. § 1904 (the regulation requiring employers to record work-related illnesses) for COVID-19 cases, except where:
- There is objective evidence that the COVID-19 diagnosis may be work-related (i.e. a number of cases develop among employees working closely together, without any alternative explanation); and
- The evidence was reasonably available to the employer. “Reasonably available evidence” includes information employees give to the employer and information that employers learn regarding employees’ health and safety in the ordinary course of managing its business and employees.
Importantly, this change specifically applies to areas where there is “ongoing community transmission.” Thus, if there is ongoing community transmission in your area, follow the above guidelines to determine whether to record your employee’s COVID-19 diagnosis. If there is no ongoing community transmission in your area, it is wise to continue your efforts to analyze, in good faith, whether your employee’s contraction of the COVID-19 illness is “work-related.” (For guidance, read our previous article here.)
Please be advised that OSHA will still enforce 29 C.F.R. § 1904 for all employers in the healthcare, emergency response (i.e. emergency medical, firefighting, law enforcement), and correctional institution industries. Thus, employers in these fields must still make work-relatedness determinations for purposes of recording COVID-19 cases. For additional guidance on making this determination, reference Butler Snow’s previous article here.
 Of note, OSHA does not define “ongoing community transmission.” But publications by the CDC, among other sources, indicate that community transmission (also called “community spread”) is spread of the illness where the source cannot be identified. See Coronavirus Disease 2019 (COVID-19) Situation Summary, available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html (last accessed April 15, 2020) (“Community spread means spread of an illness for which the source of infection is unknown.”); see also Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions, available at https://www.cdc.gov/coronavirus/2019-ncov/faq.html (last accessed April 15, 2020) (“Community spread means people have been infected with the virus in an area, including some who are not sure how or where they became infected.”).