On May 19, OSHA updated its enforcement guidance to employers (and Compliance Officers) with respect to the recording of occupational illnesses, specifically coronavirus disease (COVID-19) cases. In mid-April, OSHA previously advised that most employers (except healthcare employers) did not have an obligation to analyze whether an employee’s COVID-19 case was work-related, and could assume it was not work-related. OSHA’s new guidance, effective May 26, states that employers must follow three-steps to determine if a COVID-19 case of an employee must be recorded on the OSHA 300 log (following the general recordkeeping regulation 1904). A case must be recorded to your OSHA 300 log if the case is:

1. Confirmed as COVID-19;
2. Work-related; and
3. The case meets one of the general recording criteria (i.e. missing work, beyond first aid).

Obviously, with a communicable disease, it is very difficult to determine if the virus was picked up at work, or during social and nonwork-related sources.  If there is an OSHA inspection, it will be up to an OSHA compliance officer to evaluate the facts and circumstances of the COVID-19 case, and evaluate the following guidelines to determine if it is work-related.  If the case should be recorded (and is not), an OSHA Citation may be issued for a recordkeeping violation.  OSHA will ask the following:

• Was the employer’s investigation reasonable into the circumstances? Employers should ask some basic questions to aid its’ decision, such as: ask the employee about the possible source; ask about general work and non-work activities to assess potential exposures; and review workspace and if any co-workers in close contact have been diagnosed positive.
• What evidence was available to the employer? Was it acted upon? If information changes over time, the obligation to record may be impacted, and a case may need to be added/deleted from the OSHA 300 log.

What kind of evidence would support a decision that an employee’s COVID-19 case was “work-related?” (1) Other workers in close proximity have been diagnosed with COVID-19 and there is no alternative explanation; (2) a vendor, customer or facility person was in close proximity to the employee and tested positive for COVID-19; and (3) their job required frequent, close contact with the public in a location where COVID-19 was prevalent. OSHA advises that work-relatedness is not likely if the employee worked outside, closely or frequently associated with a family member or acquittance who has COVID-19 (not co-worker) and exposes employees at a time period when they are of infectious.

After its investigation into work-relatedness, an employer should not enter the case on its OSHA 300 log if it cannot determine whether it is more likely than not that exposure in the workplace played a casual role with respect to a specific employee’s COVID-19 illness. Whether a case occurred at work or not, employers have a responsibility to protect workers from exposure to COVID-19.

COVID-19 cases are coded as respiratory illnesses on the OSHA 300 log. An employee may voluntarily request not to have their name put on the OSHA 300 log because it is an illness.