OSHA 300 Log: OSHA Issues Updated Enforcement Policy Related To COVID-19 Work-Relatedness Determinations
On Tuesday, May 19, 2020, the federal Occupational Health and Safety Administration changed its policy for when employees need to record coronavirus cases as being work-related.
Under the new policy, employers who are required to keep records of work-related injuries and illnesses (OSHA 300, 300A and 301) must determine if employee COVID-19 cases were work-related, and if so, those illnesses must be recorded. Tuesday’s announcement reverses OSHA’s April 2020 directive, which said only health-care employers, corrections facilities, and emergency-response providers were required to make work-relatedness determinations for employees that test positive for COVID-19. The new policy goes into effect on May 26, 2020.
OSHA recordkeeping requirements (19 CFR Part 1904) mandate that covered employers record certain work-related injuries and illnesses.
Generally, COVID-19 can be a recordable illness, and employers would be responsible for recording cases of COVID-19, only if all of the following are met:
- The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19: https://www.cdc.gov/coronavirus/2019-ncov/php/reporting-pui.html)
- The case is work-related, as defined by 29 CFR 1904.5 (https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.5); and
- The case involves one or more of the general recording criteria set forth in 29 CFR 1904.4 (e.g., medical treatment beyond first-aid, days away from work, etc.; https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.7 ).
Under the new interim guidance, OSHA acknowledges that in areas where there is ongoing community transmission, employers may have difficulty in making determinations about whether workers who contracted COVID-19 did so due to exposures at work. In light of such difficulties, in determining whether an employer has complied with its obligations in making work-related determinations, OSHA will apply the following considerations:
- The reasonableness of the employer’s investigation: OSHA does not expect employer’s to undertake extensive medical inquiries; rather, the employer should: (1) ask the employee how he/she believes he/she contracted COVID-19; (2) discuss the employee’s 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 COVID-19 exposure.
- The evidence available to the employer
- The evidence that a COVID-19 illness was contracted at work: OSHA indicates that certain types of evidence may weigh in favor or against work-relatedness, such as:
- COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
- An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general contact, regardless of community spread.
If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that the exposure in the workplace played a role with a particular care of COVID-19, the employer does not need to record that COVID-19 illness.
MIOSHA, Michigan’s OSHA-approved state agency, has not indicated whether or not it will follow this new guidance issued by OSHA. However, MIOSHA usually follows guidance issued by federal OSHA, so employers should prepare accordingly.
Based on the new guidance, employers should implement workplace protocols to follow when/if an employee tests positive for COVID-19, and these protocols should include a “good faith inquiry” into the circumstances surrounding the employee’s positive test to determine whether the exposure make be “work-related.” If, after a good faith inquiry, you determine that an employee’s case of COVID-19 is work-related, the illness should be appropriately recorded.