By James L. Curtis, Mark A. Lies, II, Adam R. Young, Daniel R. BirnbaumPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has adopted a Revised Enforcement Guidance for Recording Cases of COVID-19. Under the OSHA regulations and the revised guidance, most cases of COVID-19 will not be definitively “work-related” and will not be recorded or reported to OSHA.

OSHA is revising its previous enforcement policy for recording cases of coronavirus (Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019, May 19, 2020). Under OSHA’s recordkeeping requirements, coronavirus is a potentially recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:

Work related cases that result in an employee fatality must be reported to OSHA by phone or online. Because of the difficulty in determining whether this widespread virus was actually contracted at the worksite, OSHA has stated that it will focus on an employers’ reasonable, good faith efforts in making work-related determinations.

In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, Compliance Officers will consider the following:

  • The reasonableness of the employer’s investigation into work-relatedness.
  •  Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area.
  • It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how they believe they contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee their 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 SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.

Accordingly, OSHA continues to recognize the difficulty in determining work-relatedness for an illness that exists in the community and may be contracted from numerous sources and will assess employers’ reasonable efforts in making work-related determinations. In making the work-relatedness determination, employers need to consider the effect of numerous safety and health procedures that the employer has implemented to control and minimize the risk of possible infection within the workplace.

The employer’s safety program should be following the guidance of the CDC and OSHA regarding COVID-19. These precautions, when considered individually and collectively, effectively reduce and control the possible risk that the COVID-19 virus will be present and/or transmitted to another worker in the workplace. For example, by ensuring that employees are staying home and not at work when they have symptoms that might be COVID-19 the employer would be eliminating the possibility that a worker who is symptomatic with COVID-19 is at work. Further, by following key safety precautions, such as social distancing and wearing masks and face coverings, the employer is eliminating or significantly reducing the chance that an associate will be in “close contact” with someone who may have COVID-19.

If an employer makes a reasonable and good faith inquiry but cannot determine whether it is more likely than not that exposure in the workplace caused a worker to contract COVID-19, OSHA says that the employer does not need to record the case or to report a hospitalization or fatality.

The employer’s individual work-relatedness reasonable inquiry for each COVID-19 case can be short and focused on whether an employee had close contact with other individuals at work (15 minutes or more of contact, within six feet, without face masks or barriers). Cases are not recordable without close contact at work with a known or suspected COVID-19 case. Such contact is necessary but insufficient by itself, because the probability of transmission is low and there is often an alternative explanation of community transmission.

Seyfarth OSHA practice attorneys have sample questions for several industries that can help guide employers in how to best conduct this inquiry for each case.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.