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To Record or Not to Record: OSHA Changes its Mind (Again) About COVID-19

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Just when employers began calling more employees back to work, OSHA revised its guidance on when a COVID-19 infection is recordable. On the surface, the new requirements remain the same as those issued in early April.

Employers that are subject to the recordkeeping rules must record COVID-19 cases if:

    1. The case is a confirmed case of COVID-19, as defined by the CDC;
    2. The case is work-related as defined by OSHA regulations; and
    3. The case involves one or more of the general recording criteria, which in the case of a COVID-19 diagnosis will easily be met since most infected employees are likely to have missed a day of work or been diagnosed by a physician or other licensed health care professional.

The principal difference between the guidance that was issued in early April and the most recent guidance, is that OSHA previously stated that it would not require most employers (except those in the health care industry, emergency response organizations, and correctional institutions) to make work-relatedness determinations unless there was objective evidence that a COVID-19 case was work-related and the evidence was reasonably available to the employer.

Under the new guidance, while OSHA still recognizes that in many instances it will be difficult to determine whether a COVID-19 illness is work-related because an employee could have been exposed in or out of the workplace. However, OSHA will now expect employers to make a reasonable determination of work-relatedness. Compliance officers will evaluate the reasonableness of the employer’s investigation into work-relatedness and any evidence that COVID-19 had been contracted at work.

If, after conducting a good faith and reasonable determination of work-relatedness, the employer cannot determine whether it is more likely than not that exposure in the workplace caused a particular case of COVID-19, the employer will not have to record the case. However, the employer who makes a determination that infection is not work-related would be well-advised to document what it did to reach that conclusion. Did the employer talk to the infected employee? Did the employer ask the employee how he believed he became infected? Did the employer review the employee’s work environment and determine whether the employee had contact with others who may have been infected?

In its guidance, OSHA reminds employers that recording a COVID-19 illness “does not, of itself, mean that the employer has violated any OSHA standard,” which raises the question of whether employers should err on the side of caution and record any case where the employee might have been infected at work. Recognize, however, that such a decision could create problems on the workers compensation front. If OSHA sticks with its recent guidance, the employer that makes a good faith and reasonable determination that it is not likely (i.e., there is not a “preponderance of the evidence”) that the employee was infected at work should be able to avoid recording the illness.

Finally, employers with ten or fewer employees, and certain employers in low-hazard industries, still have no recording obligations, with one exception. All employers, regardless of size, must report work-related COVID-19 illnesses that result in a fatality or an in-patient hospitalization. A report can be made by calling the nearest OSHA office, the OSHA-24 hour hotline, or online at https://www.osha.gov/pls/ser/serform.html.

Please visit our Coronavirus: Preparation & Response series for additional resources we hope will be helpful.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.