OSHA Recordkeeping Guidance as Related to Covid-19

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During this Coronavirus pandemic, almost everything seems to be changing on a daily or weekly basis, this change is also effecting how employers handle the requirements of OSHA Recordkeeping.  OSHA Recordkeeping is the standard that guides employers on how they must record any work-related injury and/or illness.  This information is to be included on your OSHA 300, 300A, and 301 forms. This article will focus on how employers record confirmed COVID-19 cases and how to determine if the exposure is work-related. 

The first guidance from OSHA regarding COVID-19 and recordkeeping requirements was issued on April 10. This early guidance was very vague and confusing which has led to new guidance that came out on May 19 and will go into effect on May 26, 2020.  The current guidance requires most all employers to determine whether confirmed cases of COVID 19 are work-related when completing the OSHA 300 Logs listing injuries and illnesses.  In accordance with existing regulations, the only employers that are exempt from maintaining such injury and illness records are those with 10 or fewer employees.  Under the new guidance, the key question remains whether a case of COVID-19 is work-related.  OSHA continues to acknowledge that it will be difficult to establish that a particular case is work-related due to potential exposure both in and out of the workplace.  This current guidance places additional obligations on employers to conduct analysis and to make a reasonable determination of work-relatedness.  

With the new guidance, OSHA has provided clarification to help employers when determining whether a case of COVID-19 is recordable under the requirements of OSHA’s recordkeeping rule.  The new guidance first reiterates the OSHA recordkeeping criteria for recording a case of COVID-19:

  1. The case is a confirmed case of COVID-19, as defined by the Centers of Disease Control and Prevention;
  2. The case is work-related under the 1904.5 recordkeeping regulation that deals with work-relatedness; and
  3. One or more of the general recording criteria in 1904.7 are met, such as medical treatment or days away from work.

The first step of the above three-step process is met only if the diagnosis of COVID-19 is established by a positive test result.  Therefore, it does not appear that symptoms alone, or even a diagnosis alone, would be enough to require recording.

The key to COVID-19 recordkeeping determinations is the second step: whether the case is work-related.  Employers are expected to make a “reasonable” investigation as to whether the case is work-related.  OSHA offers some guidance to assist employers when determining if a case is work-related

  1. The reasonableness of the employer’s investigation into work-relatedness.

            Employers are not expected to undertake extensive medical inquiries, however employers should consider the following steps when they learn of a COVID-19 case:

  • Asking the employee how he/she believes they contracted COVID-19
  • Discuss with employee, while respecting privacy concerns, the activities both inside and outside of work that may have led to the illness
  • Review the employee’s work environment for potential COVID-19 exposure.
  1. The evidence available to the employer.

            OSHA recognizes that an employer cannot know everything about an employee’s             exposure, and that a determination should be based on information reasonably      available to the employer at the time the determination is made.  This can be changed    later when the employer learns additional information that might impact the work-          relatedness of the case.

  1. The evidence that a COVID-19 case was contracted at work.

            OSHA will consider certain types of evidence that weigh in favor of or against work-         relatedness of a case.  COVID-19 illnesses may be work-related when, for example:

  • Several cases develop among workers who work closely together and there is not alternative explanation.
  • It is contracted shortly after a lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • The employee’s job duties include frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

            On the other hand, OSHA provides that COVID-19 illnesses are not likely work-related     when:

  • The employee is the only worker to contract COVID-19 in the vicinity and the worker’s job duties do not include frequent contact with the general public.
  • The employee, outside of the workplace, closely and frequently associated with someone 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.

OSHA will also give weight to evidence of causation provided by the employee, the          employee’s medical provider, and the public health authorities where the information is available.

If, after making a reasonable investigation under the guidelines above, an employer cannot determine whether it is more likely than not that the COVID-19 case is work-related, then the employer does not need to record the illness.  The key for all employers will be to conduct a reasonable and objective evaluation of work-relatedness and to then use the available information to make an appropriate determination. 

If you have had an employee test positive for COVID-19, please consider the above guidance and recommendations from OSHA when determining your responsibilities regarding recordkeeping requirements.  Please give Southeastern Cotton Ginners Association a call with any questions or concerns pertaining to this information. 

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