On Tuesday May 19, 2020, the Occupational Safety and Health Administration (OSHA), issued a new guidance (again) on employers’ obligation to record COVID-19 cases in the workplace. Specifically, effective on May 26, 2020, OSHA is rescinding its April 10, 2020 guidance to employers on their obligations recording coronavirus in the workplace. In that soon-to-be superseded guidance, and as we reported here, OSHA was previously not requiring employers to record positive cases outside the healthcare/emergency responder fields without objective evidence that a positive COVID-19 case is work related and there was evidence of work-relatedness reasonably available to the employer.
Now, under the guidance effective on May 26, 2020, OSHA has determined that coronavirus is a recordable illness (as a respiratory illness on an OSHA Form 300) and employers must record it IF:
Given the return to work in many states, OSHA decided to exercise its enforcement discretion and require recordkeeping of work related COVID-19 cases under 29 CFR 1904. OSHA reminds employers that merely recording an instance of COVID-19 does not mean that the employer violated any OSHA standard. OSHA will consider the following information in determining whether the employer properly made work-related determinations:
OSHA also will give weight to any other evidence of causation based on the individual employee, medical advice, public health authorities and/or the employee’s anecdotal information.
If after the reasonable and good faith inquiry, the employer cannot determine that exposure within the work environment played a causal role in the employee’s infection, then the employer does not need to record the COVID-19 illness. To demonstrate good faith, employers should ensure they have documented their considerations and the information relied upon in making their determinations of work-relatedness.
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