The Occupational Safety and Health Administration (OSHA) has released enforcement guidance for recording cases of COVID-19. The guidance is specifically intended to be time-limited to the current public health crisis and is in effect until further notice.
The guidance reviews how employers should normally implement applicable rules (found in 29 CFR § 1904) on recording and reporting work-related fatalities, injuries and illnesses. Specifically, OSHA stated that COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19 if:
- the case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
- the case is work-related, which is defined as an event or exposure in the work environment that either caused or contributed to the resulting conditions or significantly aggravated a pre-existing injury or illness; and
- the case involves one or more of the following:
- death;
- days away from work;
- restricted work or transfer to another job;
- medical treatment beyond first aid;
- loss of consciousness; or
- a significant injury or illness diagnosed by a physician or other licensed health care professional.
However, in the guidance OSHA recognizes that due to the extent of transmission of COVID-19, employers may have difficulty determining whether workers who contracted COVID-19 did so due to exposure at the workplace.
Given the difficulty in determining the source of transmission of COVID-19, for now OSHA will only fully enforce 29 CFR § 1904 for employers of workers in the healthcare industry, emergency response organizations (including emergency medical, firefighting and law enforcement services) and correctional institutions.
As to all other employers, OSHA will now only require them to make the work-relatedness determinations found in 29 CFR § 1904 when:
- there is objective evidence that a COVID-19 case may be work related (such as several cases developing among workers who work closely together without an alternative explanation); and
- that evidence was reasonably available to the employer.
OSHA states that it has issued this guidance to help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.
For more information and to discuss these benefits further, please contact a member of Gould & Ratner’s Human Resources and Employment Practice.