OSHA Recordkeeping Rules for COVID-19 Cases

On April 10, 2020, the Occupational Safety and Health Administration issued a memorandum announcing COVID-19 as a recordable illness, plus the circumstances under which employers must record COVID-19 cases.

One of these circumstances is that the COVID-19 case must be related to work. The April 2020 memo exempts employers who meet certain conditions — except those in healthcare, emergency response, and correctional institutions — from having to determine whether a COVID-19 case relates to work.

However, on May 19, 2020, OSHA released another memorandum, replacing the April 2020 guidance and removing the afore-mentioned exemption that applied to many employers. The new, more stringent memorandum took effect on May 26, 2020.

COVID-19 recordkeeping rules under the revised memorandum

According to OSHA, “Confirmed cases of COVID-19 have now been found in nearly all parts of the country, and outbreaks among workers in industries other than healthcare, emergency response, or correctional institutions have been identified.” Consequently, the new memorandum mandates all employers subject to OSHA’s injury and illness recordkeeping criteria to record qualified COVID-19 cases.

Generally speaking, OSHA requires most employers with 10 or more employees to keep a log of all reportable work-related injuries and illnesses. This information must be recorded in OSHA Form 300, Log of Work-Related Injuries and Illnesses.

Employers required to keep the OSHA 300 Log must record COVID-19 illnesses if:

1. The case is a confirmed case of COVID-19 that matches the CDC’s definition of the novel coronavirus;
2. The case is work-related, as defined by 29 CFR § 1904.5; and
3. The case involves 1 or more of the general recording criteria outlined in 29 CFR § 1904.7 — such as leading to death, days away from work, medical treatment beyond first aid, restricted work, or transfer to another job

Generally speaking, OSHA requires most employers with 10 or more employees to keep a log of all reportable work-related injuries and illnesses.

Factors determining work-related COVID-19 illnesses

Recognizing that it’s often difficult for employers to determine whether a COVID-19 illness is work-related, OSHA says that it will utilize “enforcement discretion” to evaluate employers’ efforts in making work-related determinations.

Per OSHA, the agency’s compliance officers should consider the following factors when weighing an employers’ efforts in making COVID-19 work-related determinations:

The employer’s investigation into work-relatedness

OSHA compliance officers should not expect employers — especially small employers — to perform extensive medical inquiries, due to employee privacy concerns and most employers lacking the necessary expertise in this area. Usually, it’s sufficient for employers to do the following upon learning an employee has contracted COVID-19:

1. Ask the employee how they caught the virus
2. Talk to the employee, without violating their privacy rights, about their on-duty and off-duty activities that might have led to their COVID-19 infection
3. Assess the employee’s work environment, including any other employees, for potential COVID-19 exposure

The evidence available to the employer

Employers should consider all the information that’s reasonably available to them when making the work-related determination. Further, if the employer receives additional information later on about an employee’s COVID-19 illness, they should include it in their work-relatedness determination.

The evidence that an employee contracted COVID-19 on the job

This is arguably employers’ biggest challenge, and as OSHA states, there’s no “ready formula” for making this determination. That said, the agency has provided a list of instances to help employers decide whether an employee contracted COVID-19 at work.

According to the revised memorandum, COVID-19 is likely work-related if:

• There are several cases of COVID-19 infections among employees who work closely together and there is no other explanation
• The employee caught COVID-19 shortly after having a long, close exposure to a client or coworker who has been confirmed with COVID-19 and there is no other explanation
• The employee’s work activities involve having regular, close contact with the general public in a locality with ongoing community transmission and there is no other explanation

COVID-19 is likely not related to work if:

• The employee is the only worker in their vicinity to contract COVID-19 and their work does not involve having regular contact with the general public
• The employee regularly and closely associates with someone (outside of the workplace) who is not a coworker but has COVID-19 and could have transmitted the disease to the employee

If you cannot determine, after conducting a reasonable and good-faith assessment, that an employee’s COVID-19 infection was more likely than not from their job, then you do not have to record the COVID-19 illness on OSHA Form 300.

If you cannot determine, after conducting a reasonable and good-faith assessment, that an employee’s COVID-19 infection was more likely than not from their job, then you do not have to record the COVID-19 illness on OSHA Form 300.

Employee privacy concerns

OSHA regards certain work-related injuries and illnesses as “privacy cases” that must be handled confidentially. In these cases, you cannot enter the employee’s name on the OSHA 300 Log. Privacy cases include:

• Injuries or illnesses that occur on intimate parts of the body or reproductive system
• Sexual assaults
• Mental illnesses
• Tuberculosis, hepatitis, and HIV infection
• Needlestick injuries

OSHA regulations specifically define what constitutes a privacy case and, if an employee’s case meets that definition, the employer can exclude the employee’s name from the OSHA 300 Log.

Per the National Law Review, COVID-19 infections do not meet OSHA’s definition of “privacy case,” and employers who treat these illnesses as privacy cases “should be aware of potential liability.”

Employers with less than 10 employees, or in low-risk industries

The revised memorandum does not change OSHA’s recordkeeping exemption for employers with less than 10 employees or those in specific low-hazard industries — such as accounting, legal services, and educational institutions. These employers normally do not have to keep OSHA injury and illness records. But they must report to OSHA:

• Illnesses (including coronavirus cases) related to work that lead to death
• An employee being hospitalized
• Amputation
• Loss of an eye

Remember to check state law

Some states regulate job and safety health programs that OSHA approves. The state may adopt some or all of the federal OSHA recordkeeping requirements. For example, Minnesota OSHA Compliance, which largely follows federal OSHA rules, says it will comply with federal OSHA recordkeeping laws for COVID-19 illnesses.

Though the California Division of Occupational Health adheres to federal OSHA laws to some extent, it has added its own regulations as well. If you’re in California, visit the Cal/OSHA website for guidance on “Recording and Reporting Requirements for COVID-19 Cases.” Employers in other states may contact their regional federal or state OSHA office for assistance.