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OSHA Revises Enforcement Guidance for Recording COVID-19 Cases

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On Tuesday, May 19, 2020, the Occupational Safety and Health Administration (“OSHA”) published revised interim enforcement guidance on its recordkeeping requirements for COVID-19 cases. See Memorandum from Lee Anne Jillings & Patrick J. Kapust, OSHA, "Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)," May 19, 2020.

Unlike the common cold or flu, which OSHA has exempted from its OSHA recordkeeping requirements, OSHA considers COVID-19 a recordable illness. In its April 10, 2020 interim enforcement guidance, OSHA attempted to limit recordable cases outside of high-risk workplaces, such as hospitals, by only requiring the employer to analyze work-relatedness if the connection was obvious (e.g., the workplace has a cluster of cases and no alternative reason outside the workplace explanation). See Memorandum from Lee Anne Jillings & Patrick J. Kapust, OSHA, “Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19),” Apr. 10, 2020.

OSHA received backlash for this enforcement stance from unions and the media, who viewed it as an inadequate response. For instance, The New York Times interviewed several retired OSHA personnel, one of whom commented that “through the agency’s combination of policy rollbacks and inaction ‘they’re sending signals to employers that they don’t have to do anything.’” Further, on May 18, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed a petition in the U.S. Court of Appeals that, if granted, would force OSHA to enact an emergency temporary standard for preventing worker exposure to the SARS-CoV-2 virus.

Likely in response to public pressure, the May 19 guidelines rescind the April 10 guidelines, and walk back the exceptions on recording requirements for employee cases of COVID-19. Per the guidance, an employer is responsible for recording cases of COVID-19 if:

  1. The case is a confirmed case of COVID-19.
     
    1. OSHA relies on the Center for Disease Control (CDC) definition of a confirmed case of COVID-19, which requires the individual tested positive via a respiratory specimen for SARS-CoV-2. It is not enough to self-diagnose or for a medical professional to tell the employee to assume she likely has COVID-19.
       
  1. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7 (i.e., death, days away from work, medical treatment beyond first aid, etc.).
     
    1. Quarantine can constitute days away from work, triggering recording.
       
  1. The case is work-related as defined by 29 CFR § 1904.5.

The agency acknowledges the difficulties in determining whether employee COVID-19 illnesses are work-related; however, OSHA is requiring all employers, not only high-risk workplaces, to conduct the work-relatedness analysis. OSHA continues to encourage its Compliance Safety and Health Officers (CSHO) to exercise “enforcement discretion to assess employers' efforts in making work-related determinations.” A list of considerations for CSHOs (and presumably employers) to weigh in order to determine work-relatedness, include:

  • The reasonableness of the employer's investigation into work-relatedness.
     
    • Once an employer learns of an employee's COVID-19 illness, the employer should (1) ask the employee how she believes she contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee her 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 SARS-CoV-2 exposure, including determining if other employees in that environment contracted the COVID-19 illness.
       
    • OSHA does not expect the employer to “to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area.”
  • The evidence available to the employer.
     
    • The evidence should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination; however, if the employer later learns more information, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.
       
  • The evidence that a COVID-19 illness was contracted at work.
     
    • CSHOs should take into account all reasonably available evidence to determine whether an employer has complied with its recording obligation, weighing information such as:
       
      • Whether several COVID-19 illnesses developed among workers who work closely together and there is no alternative explanation;
         
      • Whether an employee was exposed to another customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation;
         
      • Whether the employee’s job duties require frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation;
         
      • Whether the employee, outside the workplace, associates with someone (e.g., family member, significant other, or close friend) who has COVID-19, is not a coworker, and exposes the employee during a time in which the individual is likely infectious; and
         
      • Whether there is any evidence of causation provided by a medical provider, public health authorities, or the employee herself.

Work related analysis remains difficult because community spread is being reported in all states and an individual can spread the virus without showing symptoms. OSHA provides that “[i]f, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.” (emphasis added).

The revised guidance goes into effect on May 26, 2020. Like the April 10, 2020 guidance, OSHA states the guidance is meant to be time-limited to the current COVID-19 public health crisis, and it advises employers to frequently check OSHA’s webpage for updates. See www.osha.gov/coronavirus.

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