On April 10, 2020, OSHA issued enforcement guidance revising and substantially relaxing its position on employers’ obligation to record on OSHA 300 logs or report to OSHA COVID-19-related infections, hospitalizations and fatalities, in order to “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.”

OSHA previously said that a confirmed case of COVID-19 was recordable (and reportable in the event of hospitalization or fatality) if the case was determined to be work-related. However, due to ongoing and widespread community transmission, OSHA recognizes that the vast majority of employers “may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. In light of those difficulties, OSHA is exercising its enforcement discretion in order to provide certainty to the regulated community.”

Accordingly, for employers not involved in healthcare, emergency response (e.g., emergency medical, firefighting and law enforcement services) or operating correctional institutions, until further notice OSHA will not be enforcing the requirement that employers perform a work-relatedness determination to assess whether an employee became infected with COVID-19 at work, except where:

1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation, and
2. The evidence was reasonably available to the employer. Examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.

In other words, for most employers, unless there is some “reasonably available” “objective evidence” of work-relatedness (e.g., a high infection rate in a cluster of people who work closely together), and where there is not “an alternative explanation” as to how that group of people may have otherwise become infected, then the infections are not recordable or reportable (in the event of a fatality or hospitalization).  Employers who experience “a number of cases developing among workers who work closely together” will need to evaluate available information to determine whether there is objective evidence of transmission in the workplace. Such information should include the timing of the employees’ infections as well as the timing of when those employees worked around or were exposed to one another, work practices and precautions in place during such times, as well as other risk factors of the infected individuals outside of work that might provide alternative explanations for their infections.

Healthcare providers, emergency responders and operators of correctional institutions must continue performing work-relatedness determinations and recording (and possibly reporting) employees’ COVID-19 infections.  

This change to OSHA’s recordkeeping and reporting requirements came just days before OSHA announced its COVID-19 Interim Enforcement Response Plan, which further focused the agency’s investigatory resources on healthcare providers, emergency responders and other high risk employers. Our summary of OSHA’s Interim Enforcement Response Plan is available here.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.