On May 19, 2020 OSHA issued revised enforcement guidance for recording cases of the coronavirus. See Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)
. Under this new guidance, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19, if:
Confirmed Case (CDC):
- 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 as defined by 29 CFR § 1904.5; and,
- The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
A confirmed case of COVID-19, as defined by the CDC, means that an individual has tested positive through at least one respiratory specimen type for SARS-CoV-2, the virus that causes COVID-19.
Work-Related (29 CFR § 1904.5):
Under 29 CFR § 1904.5, an employer must consider an injury or illness to be work-related if an event or exposure in the work environment (as defined by 29 CFR § 1904.5(b)(1)) either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. OSHA acknowledges the difficulty in determining the work relatedness of a COVID-19 infection and, therefore, has indicated it will apply the following considerations:
- The reasonableness of the employer's investigation into work-relatedness.
- The evidence available to the employer.
- The evidence that a COVID-19 illness was contracted at work. For instance:
- COVID-19 illnesses are likely work-related when several cases develop among workers who work in close proximity and there is no alternative explanation.
- An employee's COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or co-worker who has a confirmed case of COVID-19 and there is no alternative explanation.
- An employee's COVID-19 illness is likely work-related if his/her job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- An employee's COVID-19 illness is likely not work-related if he/she is the only worker to contract COVID-19 in his/her vicinity and his/her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- An employee's COVID-19 illness is likely not work-related if he/she, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who: (1) has COVID-19; (2) is not a coworker; and (3) exposes the employee during the period in which the individual is likely infectious.
If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.
General Recording Criteria (29 CFR § 1904.7):
Under 29 CFR § 1904.7, an employer must consider an injury or illness to meet the general recording criteria, and, therefore, to be recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. An employer must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.