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OSHA’s COVID-19 Recording and Reporting Requirements

Labor & Employment Chris Nickels, Will Walden, Alexis Barkis

Pandemic work kit on white office desk with hand sanitizer, face mask and gloves. Corona virus covid-19 pandemic outbreak prevention

Employers had to adjust to a lot in 2020 in response to the COVID-19 pandemic. One item that may have slipped under the radar is OSHA’s recording and reporting requirements for employees who contract COVID-19 on the job. 

As described below, work-related COVID-19 infections are recordable for those employers who are required to maintain OSHA 300 logs.  Certain work-related COVID-19 infections that result in death or hospitalization must also be reported to OSHA.    

OSHA’s COVID-19 Recordkeeping Requirements

In general, OSHA’s recordkeeping provisions require certain employers to keep records of workplace injuries and illnesses on an OSHA 300 log. Employers with ten or fewer employees and those in industries that are designated as low-risk are exempt from the recordkeeping requirements and are only required to report illnesses that result in a fatality or an employee’s in-patient hospitalization as noted below.

OSHA maintains that work-related exposure to COVID-19 is a recordable incident and must be recorded in an OSHA 300 log if the following three requirements are met:

  1. The case is a confirmed diagnosis of COVID-19 as defined by the CDC;
  2. The case is “work-related,” which is defined by OSHA as an “event or exposure in the work environment [that] either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness”; and
  3. The case involves one or more of the general recording criteria specified by OSHA regulations, which are injuries and illnesses that result in one of the following: death; days away from work; restricted work or transfer to another job; medical treatment beyond first aid; loss of consciousness; and/or a significant injury or illness diagnosed by a physician or other licensed health care professional.

Given the manner in which a virus like COVID-19 is contracted, it can be difficult for employers to determine whether a COVID-19 illness is work-related, especially when an employee had possible exposure both in and out of the workplace. In light of the difficulty in assessing work-relatedness of COVID-19, OSHA is exercising enforcement discretion to assess employer’s efforts in determining work-relatedness. OSHA examines the following considerations when determining whether an employer conducted a sufficient investigation into the work-relatedness of a COVID-19 illness. 

The reasonableness of the employer’s investigation into work-relatedness: OSHA does not expect employers to undertake extensive medical inquiries when investigating whether a COVID-19 illness is work-related. Instead, OSHA recommends the following steps in conducting a sufficient investigation:

  • Ask the employee how he or she believes they contracted the COVID-19 illness;
  • While respecting employee privacy, discuss with the employee his or her work and out-of-work activities that may have led to the COVID-19 illness; and
  • Review the employee’s work environment for potential exposure. This should take into account whether other workers in the same environment contracted COVID-19.

The evidence available to the employer:  The employer should review all reasonably available evidence at the time the work-relatedness determination is made. OSHA has not elaborated on what “reasonably available” means, but it appears that any evidence that can only be obtained by extensive inquiry need not be examined. OSHA will take into consideration whether an employer comes across additional information at a later point in time in determining the sufficiency of the work-relatedness investigation.

The evidence that a COVID-19 illness was contracted at work: There is no precise formula used by OSHA to determine whether an employer complied with its recording obligation, but certain evidence may weigh for or against work-relatedness. Examples include:

  • Several other cases develop among workers who work closely together;
  • The employee’s COVID-19 illness is contracted after having lengthy contact with a co-worker or customer who tested positive for COVID-19;
  • The employee has frequent exposure to the general public in a community with a higher than average transmission rate;
  • The employee frequently associates with an individual outside of the workplace who has Covid-19, who is not a coworker, and exposes the employee while they are infectious.

If after conducting the above good-faith inquiry the employer cannot determine whether it is more likely than not that the employee’s exposure in the workplace caused the COVID-19 illness, the employer does not need to record the COVID-19 illness on their OSHA 300 log.

Thus, employers need to conduct an investigation into whether an employee's COVID-19 infection was work-related, even if that investigation is relatively straightforward.  Employers should keep documentation of its work-relatedness investigation in the event OSHA questions the sufficiency of its decision not to record a COVID-19 illness.

OSHA’s COVID-19 Reporting Requirements

The same difficult work-relatedness assessment discussed above also comes into play when considering whether to report (by telephone or online) a confirmed COVID-19 case to OSHA. The reporting obligation applies to 1) in-patient hospitalizations, or 2) fatalities resulting from a work-related exposure to the virus. A hospitalization for COVID-19 only becomes reportable when the employee receives a formal admission to the in-patient service of a hospital or clinic for care or treatment (not merely observation or diagnostic testing) within 24 hours of exposure to COVID-19 in the workplace. Employers must report such a hospitalization to OSHA within 24 hours of knowing both that the employee became hospitalized and that the hospitalization resulted from a work-related case of COVID-19. This scenario has a lower probability given COVID-19’s epidemiology, where individuals typically remain asymptomatic for the first 24 hours after exposure and hospitalizations (if they occur) happen later in time.

A fatality due to a work-related case of COVID-19, on the other hand, is reportable if it occurs within 30 days of the exposure to the virus in the workplace. Employers must report such a fatality within eight hours of learning that the employee died as a result of a work-related case of COVID-19. Obtaining reliable information on whether the employee's death resulted from COVID-19 may likely pose a practical challenge. The cause of death is protected health information and thus not simply a matter of contacting the treating health care institution for details. Sometimes family members of the employee will report this information to the employer. OSHA has not provided solutions for how employers are to acquire COVID-19-related health information from employees.

For more information regarding OSHA recording and reporting requirements, please contact your Quarles & Brady attorney or: