OSHA Issues Interim Guidance Regarding Coronavirus Recordkeeping Obligations

13 April 2020 Blog
Author(s): Katelynn M. Williams Scott T. Allen
Published To: Coronavirus Resource Center:Back to Business Labor & Employment Law Perspectives

On April 10, 2020, the Occupational Safety and Health Administration (OSHA) issued interim guidance regarding enforcement of employers’ obligation to record employees’ COVID-19 cases.  The guidance recognizes that determining whether an employee contracted COVID-19 at work will generally be difficult, and, accordingly, relaxes many employers’ recordkeeping obligations for COVID-19 cases during the pandemic.

The new guidance first reiterates the three criteria—previously addressed in our FAQ series—that would render an employee’s COVID-19 case recordable:  

No. 33: Do I have to record my employee’s confirmed case of COVID-19 on my OSHA 300 log?

Employers may have to record the confirmed case of COVID-19 on their OSHA 300 log under certain circumstances. While OSHA regulations state that the common cold or flu is generally not recordable, OSHA indicates that COVID-19 can be a recordable illness “when a worker is infected as a result of performing their work-related duties.” That is, if the employee has a “confirmed case” of COVID-19, if the case is “work-related” as defined in the regulations (e.g., exposure in work environment caused or contributed to the illness), and if the case meets one of the general recording criteria under the regulations (e.g., days away, medical treatment beyond first aid, etc.), it must be recorded. Of course, the difficult task for employers (and OSHA, for that matter) is determining when and how an employee contracted the virus. This is a fact-intensive inquiry that will require some consideration of whether, among other things, the employee’s coworkers have previously exhibited COVID-19 symptoms, whether the employee has engaged in work travel to any areas with high virus activity, and/or whether the employee has come into contact with customers or vendors who have previously exhibited COVID-19 symptoms.

Update Based on Interim Guidance

OSHA’s interim guidance (issued on April 10) now acknowledges that determining whether an employee’s COVID-19 diagnosis is work-related is, indeed, difficult.  “In light of these difficulties,” OSHA advises that it will generally not enforce the recordkeeping regulations requiring employers to make work-related determinations for COVID-19 cases during the pandemic.  However, there are a few exceptions to the temporary non-enforcement:

  • Employers in the healthcare/emergency response industries and correctional institutions must continue to make work-relatedness determinations as defined in the regulations. 
  • Other employers must continue to make the same work-relatedness determinations where: (1) there is objective evidence that a COVID-19 case may be work-related (e.g., a number of cases developing among close coworkers without alternative explanation); and (2) such evidence is reasonably available to the employer (e.g., information provided directly by the employees or learned in the ordinary course of managing the business/employees).

The goal of the new guidance, according to OSHA, is to enable employers to focus their efforts on implementing good hygiene practices and otherwise mitigating COVID-19’s effects.  

We will continue to monitor Department of Labor and OSHA guidance relative to employers’ obligations during the COVID-19 pandemic and provide updated information as it becomes available.

For more information, please contact your Foley relationship partner or the Foley colleagues listed below. For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the websites of the CDC and the World Health Organization

Foley has created a multi-disciplinary and multi-jurisdictional team to respond to COVID 19, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form. 

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