Earlier this Spring, OSHA instituted employer recording requirements to document employees who contract COVID-19. Those requirements have been updated multiple times since their inception. Below, Butler Snow provides the most recent guidance for employers navigating their COVID-19 recording requirements as outlined in OSHA’s May 19, 2020 Enforcement Guidance.
All Employers Must Record Work-Related Cases of COVID-19
Formerly, OSHA announced that it would not enforce 29 C.F.R. § 1904 (the regulation requiring employers to record “work-related” illnesses) for COVID-19 cases unless there was objective evidence reasonably available to the employer indicating that the illness was work-related.
However, OSHA’s May 19 update announced that OSHA will now enforce 29 C.F.R. § 1904 against all employers in all industries. As of May 19, 2020, all employers should record cases of COVID-19 if all three of the following conditions are met:
- The case is a confirmed case of COVID-19;
- The case is “work-related” as defined by 29 C.F.R. § 1904.5; and
- The case involves one or more of the “general recording criteria” found in 29 C.F.R. § 1904.7.
Employers Must Undertake a Reasonable Investigation Into Work-Relatedness
Recognizing the difficulty in determining whether a case of COVID-19 is “work-related,” OSHA’s most recent update clarifies requirements for a “reasonable” investigation into whether an employee’s contraction of COVID-19 is work-related. To complete a “reasonable” investigation, employers should:
- Ask their employee how they believe they contracted COVID-19;
- With due consideration for the employee’s privacy, discuss work-related and non-work-related activities that could have led to them contracting COVID-19; and
- Review the employee’s work environment for potential exposure.
Additionally, OSHA provided guidance on evidence that will indicate that contraction is likely work-related, including if several workers who work closely together all contract COVID-19, if (absent any alternative explanation) contraction follows close exposure to a customer or coworker with COVID-19, and if (absent any alternative explanation) the employee’s job duties include frequent, close exposure to the general public.
OSHA also provided evidence that will indicate that contraction is not work-related, including if the employee is the only one in the vicinity who contracted the virus and their job duties do not involve frequent contact with the general public, and the employee had frequent close contact with a non-coworker with COVID-19 while that person was likely contagious.
Finally, any new information the employer learns after making a determination about work-relatedness may be taken into account later in determining if the work-relatedness determination was reasonable.
As advised in previous articles, employers who have an employee with a confirmed COVID-19 diagnosis should be careful to document all information relied upon in the work-relatedness determination in order to establish that the analysis was conducted in good faith.
For background and additional context on these regulations, see Butler Snow’s previous updates here and here. If you have questions or concerns, please contact Jay Bolin at Jay.Bolin@butlersnow.com or 601-985-4595; Tim Threadgill at Tim.Threadgill@butlersnow.com or 601-985-4594; Xan Ingram Flowers at Xan.Flowers@butlersnow.com or 205-297-2249; or Anna Little Morris at Anna.Morris@butlersnow.com or 601-985-4487.*
 At the time of publication, OSHA has published no additional guidance since the May 19, 2020 update.
 This exception did not apply, however, to employers in the healthcare, emergency response, or correctional institution industries; all of those industries have been required to record COVID-19 cases throughout the pandemic.
 Employers 10 or fewer employees and certain employers in low hazard industries do not have recording obligations under existing OSHA regulations. Such employers “need only report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.” See 29 C.F.R. §§ 1904.1(a)(1), 1904.2.
 Under 29 C.F.R. § 1904.7, an injury or illness is recordable if it results in any of the following (the “general recording criteria”): death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness or if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional.
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