The Occupational Safety and Health Administration (OSHA) requires employers to keep their workplaces safe and healthy for their employees. As part of their obligations to keep the workplace safe and healthy, employers must record and, in some cases report, injuries and illnesses. Under OSHA guidelines, COVID-19 is a “recordable” illnesses.
On April 10, 2020, OSHA released an interim guidance that required employers—except for those with 10 or fewer employees and employers in certain low-risk industries—to record COVID-19 cases that:
- Are confirmed to be COVID-19 as defined by the Centers for Disease Control (CDC);
- Are work-related as defined by 29 CFR 1904.5; and
- Involve one or more of the general recording criteria in 29 CFR 1904.7, such as days off from work or treatment beyond first aid.
All employers, even those exempted from recordkeeping obligations, must report to OSHA work-related COVID-19 cases that led to death or to a worker’s in-patient hospitalization, amputation, or loss of eye.
Under the April 10 guidance, only employers of healthcare industry workers, emergency response organizations, and correctional institutions were required to determine, in accordance with OSHA regulations, whether or not a worker’s COVID-19 illness was work-related. All other employers did not have to engage in this determination unless there was objective evidence that a worker’s COVID-19 illness was work-related, and the evidence was reasonably available to the employer. In practice, this meant that most employers would not have to record COVID-19 illnesses because, in most cases, employers would not have objective evidence that the illness was work-related.
Under the updated interim guidance, released on May 19, 2020, all employers with recordkeeping obligations are required to make reasonable efforts to determine whether or not a workers’ COVID-19 illness is work-related. OSHA recommends that employers review available evidence that is available to them at the time they make the work-relatedness determination and use all circumstantial evidence such as the number of COVID-19 cases that developed among employees working closely together in the workplace. The new interim guidance provides more details on how employers should make a work-relatedness determination of COVID-19 illnesses of their employees.
Employers who meet the recording and reporting obligations of OSHA with respect to COVID-19, and who are bringing employees back to the worksite after a period of furlough or teleworking, will need to carefully consider and implement these OSHA requirements.
OSHA’s updated interim guidance will go into effect on May 26, 2020 until further notice. This version of the guidance supersedes the previous interim guidance and is intended to be time-limited to the current COVID-19 pandemic.
If you have any questions or concerns about OSHA’s new guidance and its requirements, you may contact Chaim Book at cbook@mb-llp.com or Sheryl Galler at sgaller@mb-llp.com.
