Guidance from OSHA on COVID-19 Reporting and Recordkeeping

The Occupational Safety and Health Administration (OSHA) released two memos regarding the COVID-19 pandemic: one regarding employer’s record-keeping requirement; one regarding process and procedures for investigations.

1. Updated Interim Enforcement Response Plan for Coronavirus Disease 2019. This memo provides instruction and guidance for safety and health officers for handling COVID-19 complaints, referrals and severe illness reports.

2. Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019. This memo provides information for employers on the required recordkeeping and recording of cases of COVID-19. This memo goes into effect on Tuesday, May 26, 2020 and broadens the reporting obligations beyond the healthcare worker industry.

OSHA broadens the reporting obligations beyond the healthcare worker industry. Because COVID-19 is a respiratory illness, certain Employers are responsible for recording COVID-19 cases. Employers are responsible for recording COVID-19 cases, if:

1. It is a confirmed COVID-19 case, as defined by the CDC;
2. The case is work-related; and
3. The case involves one or more of the general recording criteria as set for the CFR.

Exempt Employers: 10 or fewer in ‘low hazard industries’ have no recording obligation. They only need to report work-related COVID illness that results in a fatality or an employee in-patient hospitalization, amputation or loss of an eye.

‘Work-Relatedness’ standard: Compliance Safety and Health Officers (CSHOs) apply the following considerations for whether an employer has complied with the obligation to make a ‘reasonable determination’ of ‘work-relatedness’:

1. Reasonableness of employer’s investigation: it is sufficient in most circumstances for the employer, after learning of an employee’s COVID illness: a) to ask the EE how the illness may have been contracted; b) discuss the employee’s work and out-of-work activities that may have lead to the illness, while respecting the employee’s privacy; and c) review the employee’s work environment for potential exposure (this factor should consider whether any other employees contracting COVID).
2. Evidence reasonably available to the Employer at the time it makes the determination of work-relatedness. Information acquired after the determination should be considered also.
3. Evidence that the COVID illness was contracted at work. There is no formula; but certain types of evidence may weigh in favor or against a determination of work-relatedness. For instance:

   Likely work-related:

i.When several cases develop among workers who work closely together without alternative explanation;

ii.illness is contracted shortly after lengthy, close exposure to a particular customer or co-worker with a confirmed COVID case and no alternative explanation;

iii.employee’s job duties include frequent, close exposure to the general public in a locality with on-going community transmission and no alternative explanation.

Likely not work-related:

i.Employee is only COVID case in vicinity and job duties do not include having frequent contact with the general public, regardless of rate of community spread;

ii.Employee, outside the workplace, closely and frequently associates with someone (ex: spouse, friend, family member) who: has COVID; is not a coworker; and exposed the employee during a time when that person was likely infectious.

After a “reasonable and good faith inquiry” that includes the factors above, if the Employer cannot determine whether it is “more likely than not” that exposure in the workplace played a causal role regarding a particular case of COVID, the employer does not have to record that COVID illness.

Employers should recall that an injury or death is subject to the general recording criteria (i.e., it is recordable) if it results in: death; days away from work; restricted work or transfer to another job; medical treatment beyond first aid; loss of consciousness or any of the foregoing are diagnosed by a licensed healthcare professional.

The DOL blast reminds employers: 1) to understand their state’s requirements as to whether there is an obligation to report any all instances of potential fraud, waste or abuse; and 2) employer fraud may include action to avoid tax liability or establishing a fictitious employer account to enable fraudulent claims against that account. It reminds UI claimants: 1) of their obligation to accept offers of suitable employment and that refusing to accept a suitable offer of employment may cause a suspension of benefits; and 2) claimant fraud includes knowingly submitting false information, knowingly continuing to collect benefits when ineligible, certifying for benefits under state law while not being able and available for work, or intentionally collecting full benefits while not reporting wages or income.