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OSHA Update: Work-Related COVID-19 Cases are Recordable, and Increased In-Person Inspections are on the Horizon

Labor & Employment Alert Lauren R. Harpke, Christopher L. Nickels

Occupational Safety and Health Administration OSHA Business team work

In yet another example of the fluid nature of business operations in this time of COVID-19, the Occupational Safety and Health Administration (OSHA) is revising several of its previously issued interim policies regarding the Agency’s enforcement efforts related to COVID-19. Effective May 26, 2020, OSHA is reinstating certain employer obligations to evaluate and determine work-relatedness for recording employee COVID-19 cases as outlined in its Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19). Additionally, OSHA announced in its Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) that the Agency would revise its approach to in-person worksite facility inspections, likely resulting in an increase of inspections that were previously limited under the OSHA’s earlier interim COVID-19 policy.

Recording COVID-19 Cases on OSHA 300 Logs

Several weeks ago, OSHA outlined its intent to exercise a certain degree of enforcement discretion with respect to recording COVID-19 cases on OSHA 300 logs, but only for employers outside of the health care, emergency response, and correctional institution industries, and only if there was no objective evidence reasonably available to the employer indicating that the case may be work-related. Unless such objective evidence was reasonably available to the eligible employers, OSHA was not requiring employers to conduct a detailed work-relatedness determination for COVID-19 cases at their facilities, thus freeing up the employer's time to focus on implementing good hygiene practices in the facilities.

However, OSHA has changed its tune, and in its most recent May 19, 2020 memo, the Agency is rescinding that previous enforcement discretion policy, given that COVID-19 outbreaks are now being identified in a broader range of industries, and because the methods of both COVID-19 transmission and prevention are becoming better understood. Additionally, states across the country are scaling back their business and community restrictions, meaning that more employees are going back to the workplace. As a result, the Agency concluded that employers should be making a greater effort to determine whether an employee contracted COVID-19 due to a workplace exposure.

Effective May 26, 2020, OSHA will now be enforcing illness and injury recordkeeping requirements for employee COVID-19 cases according to its most recent revised interim policy. Despite the greater body of scientific knowledge on transmission, OSHA’s policy recognizes that employers may still encounter difficulties in determining whether certain cases are indeed work-related and, as such, outlines the following considerations for Agency enforcement officers to apply in evaluating whether a particular employer has sufficiently complied with the obligation to record a work-related COVID-19 case.

  1. Employers are required to make reasonable inquiries into work-relatedness, but are not required to undertake extensive medical inquiries. In most cases, an employer will meet its obligation by (1) asking the employee how he or she believes they contracted the illness; (2) discussing with the employee how both work activities and out-of-work activities may have led to contracting the illness (while also respecting employee privacy); and (3) reviewing the employee’s work environment for possible exposure.
  2. The employer should evaluate the information reasonably available at the time of making the initial work-relatedness determination. There is an obligation to re-evaluate upon learning new information.
  3. The following assumptions may be useful in evaluating work-relatedness:

a. Several cases among workers who work in close proximity to each other with no alternative explanation are likely work-related.

b. A case developed shortly after lengthy, close exposure to a customer or co-worker who tested positive is likely work-related.

c. Cases for employees whose job duties include frequent, close exposure to the general public in an area with community transmission, with no alternative explanation, are likely work-related.

d. A case is not likely work-related if the employee is the only worker to contract COVID-19 in his or her work area, and the employee’s job duties do not include frequent contact with the public.

e. A case is not likely work-related if the employee closely associates with someone outside of the workplace who has COVID-19 and exposes the employee during the commonly understood period of contagiousness.

f. Opinions related to evidence of causation of the medical providers, public health authorities, and the employee should be given due weight.

If the employer still cannot make a determination that the exposure was more likely than not to be work-related, then the illness does not need to be recorded. If an employee’s COVID-19 exposure is recorded as work-related, it should be coded as a respiratory illness on the OSHA 300 log. Additionally, an employer should honor any requests from the employee to omit his or her name from the log.

Updated Interim Enforcement Response Plan

OSHA’s May 19, 2020 policy memorandum summarizing its COVID-19 enforcement response plan reaffirms that eliminating COVID-19 hazards from the workplace remains a top priority. The revised response policy is geared towards providing OSHA’s enforcement officers a framework for appropriately prioritizing utilization of their limited resources to ensure safe workplaces.

In particular, under the most recent guidance, OSHA’s approach to enforcement will differ based on regional conditions as follows.

  1. In geographic areas where the community spread of COVID-19 has significantly decreased, OSHA will mostly return to its standard Field Operations Manual procedures when prioritizing inspections, albeit with a few differences. First, OSHA will continue to prioritize COVID-19 cases. Second, OSHA will utilize rapid response investigations or methods other than in-person inspections when necessary to ensure effective use of resources.
  2. In geographic areas that are experiencing sustained or resurgences of elevated community transmission, OSHA will exercise its discretion with respect to the following. First, OSHA will utilize phone or other methods instead of in-person inspections when such alternatives are suitable to address the hazard. Second, OSHA will continue to prioritize in-person inspection for those related to COVID-19 fatalities and in imminent danger. However, alternative methods are outlined if resources are insufficient for an immediate on-site inspection for these types of cases, including using a rapid response investigation or initiating the process via a remote inspection with the intention of conducting an on-site component when resources become available. If these alternative methods are used at a facility with a fatality or imminent danger case, OSHA has committed to developing a program for random monitoring inspections of these facilities at a later date.

In all cases of in-person inspections, OSHA will utilize personal protective equipment (PPE) and any appropriate precautions when performing inspections.


Ultimately, OSHA is readjusting its interim approaches to COVID-19 enforcement to match the changing dynamic of the country, which now has a greater understanding of COVID-19 and is gradually reopening for business and sending a greater number of employees back to the workplace.

If you have questions about how this policy may be helpful to you or your operation, please contact your Quarles & Brady attorney or:

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