The Occupational Safety and Health Administration (OSHA) has issued updated interim guidance to Compliance Safety and Health Officers (CSHOs) for enforcing the recording requirements for workplace cases of COVID-19. Pursuant to this guidance, dealers must record work-related COVID-19 cases on OSHA 300, 300A and 301 reports. Unfortunately, it is still unclear whether this new recording requirement applies to workplace cases of COVID-19 from before May 19, 2020 because the guidance does not explicitly state whether it is retroactive.
Dealers must record a case of COVID-19 if all of the following circumstances are present:
- The case is a confirmed case of COVID-19. A confirmed case of COVID-19 is one where the individual tested positive at least once for SARS-CoV-2, the virus that causes COVID-19.
- The case is work-related. An illness is work-related if the employee was exposed to COVID-19 in the work environment. Work-relatedness is presumed for illness resulting from exposures occurring in the workplace.
However, it is still difficult to determine whether a case of COVID-19 is work-related. As a result of this difficulty, OSHA CSHOs will use their discretion in determining whether or how to enforce the recording requirement. When investigating whether an employer properly investigated an employee’s case of COVID-19 for workplace-relatedness, the CSHO will look at the following factors:
- The reasonableness of the employer’s investigation into work-relatedness. To adequately investigate, the employer should look into: (1) how the employee believes they contracted COVID-19, (2) what work and out-of-work activities may have led to contracting COVID-19 and (3) the employee’s work environment for potential COVID-19 exposure.
- The evidence reasonably available to the employer at the time it made its work-relatedness determination. If the employer learns more information after it made its work-relatedness determination, then the CSHO will consider this, too.
- The evidence that a COVID-19 illness was contracted at work. Certain circumstances would suggest that it was likelier than not the sick employee contracted COVID-19 at work, such as a cluster of sick employees who work closely together or the sick employee had a lengthy, close exposure to a sick customer, with no alternative explanation in either scenario. But if the employee is the only one who got sick in their vicinity and their job does not include frequent contact with the general public or the employee’s family member was sick with COVID-19, then the employer could reasonably conclude that the employee’s sickness was not work-related and not record the case.
- The case involves one or more of the usual OSHA recording criteria: death, days away from work, restricted work, transfer to another job, medical treatment beyond first aid, loss of consciousness, or significant injury or illness diagnosed by a physician or other licensed health care professional.
If all three of the above criteria indicate it is likely that the employee contracted COVID-19 at the workplace, the employer must record that COVID-19 illness. The sick employee may request that their name not be entered on the OSHA log, and, if they do, dealers must not include their name in the report. If the above three criteria do not suggest that it was likely that the employee contracted COVID-19 at work, dealers do not have to record that employee’s COVID-19 illness.