In an Interim Guidance Memorandum issued on Friday, the Occupational Health and Safety Administration has attempted to simplify the decision making for most employers in determining whether employees who are diagnosed with COVID-19 contracted the disease at work.

OSHA distinguishes in the memo between employers (1) in the health care industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), correctional institutions, and (2) all other types of employers. Employers in the first group are still required to comply with the existing § 1904 injury and illness recordkeeping requirements. Employers in the second group – most employers – are largely excused from having to investigate and determine whether a COVID-19 case is work-related. In other words, as described further below, unless the determination of work-relatedness is presented to employers by employees or by health care providers, employers have no obligation to investigate whether a COVID-19 case is work-related.

Generally speaking, for a COVID-19 case to be recordable on an OSHA 300 Log, the following recordkeeping analysis must be made:

  1. The case is a confirmed or diagnosed case of COVID-19, as defined by the CDC,

  2. The case is work-related as defined under § 1904.5(b)(2), and

  3. Any of the five general recording criteria set forth in § 1904.7 are met:

  • Medical treatment

  • Restricted work activity

  • Day(s) away from work

  • Loss of consciousness

  • Death

As a practical matter, this means that to be recordable, a work-related case must have resulted in medical treatment, day(s) away from work, or death.

For a case to be work-related for the second group of employers, there must be “objective evidence” that the employee contracted COVID-19 in the work environment. OSHA offers an example:  “a number of cases developing among workers who work closely together without an alternative explanation.” OSHA further explains that this “objective evidence” must be “reasonably available” to the employer, which means, for example, that the evidence was “given to the employer by employees” or the employer learns the circumstances “in the ordinary course of managing its business and employees.”

What this guidance for the second group of employers seems to suggest is that the only COVID-19 cases that would be determined to be work-related involve situations where there are (1) a known, active COVID-19 case in the work environment (or in the Agency’s example, “a number” of such cases), (2) another employee working in close proximity (less than six feet) to the known, active case, and (3) no other contact with a known COVID-19 case away from work.  And OSHA seems to be saying that an employer does not have to conduct an investigation to determine whether the case is work-related. The information supporting work-relatedness would, in essence, have to be presented to the employer by employees or in some other manner, perhaps by a medical care provider or the Public Health Department.

Health care and the other types of employers listed by OSHA in the first group are still tasked with applying the existing injury and illness recordkeeping regulations described above.  Therefore, there is no relaxation of the recordkeeping rules for the first group of employers.

The Interim Guidance for the recording of COVID-19 cases is intended to apply as well in states that have their own OSHA Plans.

Although the Interim Guidance does not address the circumstances under which COVID-19 cases would need to be reported to OSHA, the requirements are the same for either group of employers. A case involving an employee with a diagnosed COVID-19 case must be reported to OSHA if the employee

  1. Is admitted to a hospital within 24 hours of the exposure, or

  2. Dies within 30 days of the exposure.

If either of these events occurs, the admission into a hospital would need to be reported to OSHA within 24 hours or within 8 hours if a fatality occurs.

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