Employer Recordkeeping Responsibilities for COVID-19 Cases


OSHA recently issued updated recordkeeping guidance for COVID-19 cases.  This guidance went into effect last week. Per the guidance, if an employee contracts COVID-19, it must be recorded on the company’s OSHA 300 log if the following circumstances are met:

  1. The case is a confirmed case of COVID-19, as defined by CDC;
  2. The case is work-related; and
  3. The case involves one or more of OSHA’s general recording criteria.

The third prong – OSHA general recording criteria – is met if any of the following occur: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.  Employers should presume that if an employee presents a confirmed case of COVID-19, that the third prong will be met.

So whether a confirmed case of COVID-19 should be recorded will most likely turn on whether it is work-related.  The general test for whether an illness is work-related is whether the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.

The recent OSHA guidance provided some helpful information on how to make this determination.  First, employers will not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area. Thus, OSHA has concluded that in most circumstances, the employer should simply (1) ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee's work environment for potential exposure, with a focus on whether any other workers in that environment contracted COVID-19.  Second, the employer only has to consider the evidence available to it at the time the illness is reported by the employee.  Of course, if subsequent evidence turns up later, that must also be taken into consideration.

Third, OSHA helpfully provided some examples of instances that should enable an employer to decide whether the illness is work-related:

  • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
  • An employee's COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • An employee's COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
  • An employee's COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • An employee's COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) 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.

Finally, if the employer conducts a reasonable, good faith inquiry and as a result, cannot determine that it is more likely than not that exposure at the workplace played a causal role in contracting the illness, it does not need to record the illness.

Stay safe and keep the course.  And please let us know if we can help.

Thanks, Jack, Elizabeth and Jim

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