As the economy begins to reopen, many employees will be returning to the workplace after COVID-19 restrictions. To ensure the workplace is safe, employers are implementing protocols to ensure sick employees stay home, facilities are clean and configured for optimal safety, and workers comply with their employer’s exposure prevention policy. Unfortunately, the threat of the Coronavirus is still very real and employees continue to be vulnerable to infection. If an employee contracts the virus during the time the employee is reporting to the worksite, the employer may need to double-down on precautionary measures. The employer will also need to determine whether the employee’s illness is a work-related case of COVID-19 that must be recorded and reported to OSHA.
To ensure employers are taking action to protect their employees, federal OSHA announced changes in its enforcement policies effective May 26, 2020. First, OSHA is increasing in-person inspections at all types of workplaces. Second, OSHA is stepping up its enforcement policy for recording cases of Coronavirus. Under the new OSHA enforcement policy, employers are responsible for recording cases of COVID-19 on their OSHA Form 300 Log of Work-Related Injuries and Illnesses, if the case:
- Is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
- Is work-related, as defined by 29 CFR § 1904.5; and
- Involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
Under 29 CFR § 1904.7, an illness is recordable if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.
The real difficulty for employers is determining whether the employee’s illness is due to a work-related exposure and recordable. According to OSHA, if the employer conducts a “reasonable and good faith inquiry” and the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role, the employer does not need to record that COVID-19 illness. OSHA’s guidance states that it is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to 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.
Work-relatedness is more likely when:
- several cases develop among employees who work closely together;
- the illness is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case; or
- the employee’s job duties require frequent, close exposure to the public in a locality with ongoing community transmission.
On the other hand, an illness is less likely to be work-related if:
- the employee is the only one who contracts COVID-19 in her vicinity and the employee’s job duties do not include frequent public contact; or
- the employee closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who has COVID-19, is not a coworker, and likely exposed the employee to COVID-19.
While the COVID-19 recording requirements apply to employers in higher-risk industries with 11 or more employees, the new guidance provides valuable insights for all employers. Even though employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations, all employers regardless of size or industry must report work-related COVID-19 illnesses that result in a fatality, in-patient hospitalization, amputation, or loss of an eye.