OSHA Issues New Interim Guidance Regarding When Worker COVID-19 Infection Must Be Recorded as a Work-Related Illness

Most employers in the United States are required to keep an ongoing record of work-related injuries and illnesses, known as an "OSHA 300 log." While it is often obvious whether an injury is work-related, the nature of COVID-19 and its well-publicized latency period can make it difficult to determine whether an infection is work-related when the origin of the worker's infection, whether in the community or in the workplace, is often unknowable.

OSHA initially addressed this conundrum by assuring most non-healthcare employers that their obligation to determine whether a case of COVID-19 was work-related could be satisfied by determining whether there was objective evidence, reasonably available to the employer, that an employee may have contracted the virus while at work. Absent such evidence, OSHA said the employer had no obligation to investigate further. OSHA has now rescinded and replaced this prior guidance.

OSHA's new guidance applies to all employers and is no longer restricted to certain industries or sectors. This does not mean that more COVID-19 cases will now be recordable—just that making the determination will often be more time-consuming and difficult.

OSHA's New Interim Guidance

OSHA's new interim guidance removes any suggestion that there are shortcuts to determining the recordability of COVID-19 cases. It advises employers to conduct a traditional, multi-layered work-relatedness analysis that is the same for COVID-19 as with other viral infections.

A case of COVID-19 is recordable if all of the following criteria are satisfied:

• 1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC).
• 2. The case is work-related as defined by 29 CFR § 1904.5.
• 3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

The CDC defines a "confirmed case of COVID-19" as one that has been confirmed through specific laboratory testing. Thus, if an employee has not been confirmed COVID-19-positive through specific laboratory testing, then OSHA's first criterion for recording is not met, and OSHA does not require the employer to record the illness.

The second criterion—work-relatedness—is more complicated. OSHA correctly recognizes that "in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace." Given this difficulty, OSHA has provided new guidance to help employers navigate this issue.

OSHA's third criteria is likewise objective. The general criteria for recording are that the employee experiences one or more of the following in connection with a workplace injury or illness: 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.

Typically, a COVID-19 diagnosis will result in at least days away from work, but given asymptomatic cases and the recent prevalence in telecommuting, it is conceivable that an employee may have a laboratory-confirmed case of COVID-19 but continues working from a home-office and does not fall into one of the general recording criteria. Thus, employers should determine whether the third criterion is satisfied and not skip over it.

Determining Whether a COVID-19 Case Is Work-Related

OSHA's new guidance reflects traditional guidance that employers must make a "reasonable and good faith inquiry" into "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."

• If the employer determines based on the reasonably available information that it is more likely than not, and the other two criteria are satisfied, then the case is recordable.
• If the employer's good faith determination is that the "more likely than not" test was not met, the employer is not required to record instances of a worker becoming infected with the virus.

What OSHA Inspectors Will Look for If the Employer Determines a COVID-19 Case Is Not Work-Related

OSHA identifies three factors for its Compliance Safety and Health Officers to consider in determining whether an employer has made the reasonable, good faith inquiry that OSHA's guidance requires.

First, "[t]he reasonableness of the employer's investigation into work-relatedness." OSHA does not expect employers to make extensive medical inquiries. Instead, "[i]t is sufficient in most circumstances" for the employer to ask confirmed cases how they believe they contracted COVID-19, discuss with confirmed cases work and out-of-work activities that may have led to the illness (while respecting employee privacy), and consider other instances of workers in the same environment contracting COVID-19.

Second, "[t]he evidence available to the employer." Employers should consider information reasonably available to them when determining work-relatedness, such as medical information provided by a medical provider or local health department. If new information becomes available, employers should consider whether their initial determination needs to be revised.

Third, "[t]he evidence that a COVID-19 illness was contracted at work." OSHA inspectors are directed to give due weight to evidence of causation provided by medical providers, local health authorities, or the employee. OSHA's new guidance identifies factors that make it more likely or less likely that a confirmed case is work-related.

• More likely to be work-related:
  
  • Multiple cases among workers who work closely together and there is no alternative explanation.
  • Close and prolonged exposure to a co-worker or customer who has a confirmed case and there is no alternative explanation.
  • Employee's duties include frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
• Less likely to be work-related:
  
  • Employee is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • Employee closely and frequently associates with someone (e.g., a family member, significant other, or close friend) outside of the workplace 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.

Employers Beware: States With Their Own State-Plans May Impose More Stringent Recording Standards

OSHA's interim guidance is just guidance. But it provides a reasonably clear statement of how OSHA interprets and intends to enforce the recordkeeping requirements with respect to COVID-19 cases.

Employers should also be aware that approximately half of the country's states are so-called "state-plan" states, meaning they have their own occupational safety and health regulations, including recordkeeping rules that are enforced by state agencies. Although many of these state-plan states have OSHA-identical recordkeeping obligations and can reasonably be anticipated to follow federal OSHA's guidance, they are not required to do so. Some state agencies, such as California's Cal/OSHA, have more stringent requirements than federal OSHA in one or more areas related to recordkeeping.

Employers with questions related to federal OSHA's guidance or obligations in state-plan jurisdictions should inquire with legal counsel having expertise regarding the state occupational safety and health laws in the state(s) where the employer has employees. DWT's OSHA practitioners stand ready to assist in these and any other COVID-19, OSHA-related matters.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.