May 06, 2020

OSHA Recordkeeping Requirements During the COVID-19 Pandemic

By: Allison Mann and Marissa Cerkoney

It is impossible to avoid mention of the coronavirus or COVID-19 in the news. One of the most significant stories revolves around the Smithfield pork factory in Sioux Falls, South Dakota, where the virus spread rapidly through the company’s employees. There have also been reports of the community spread of the virus in other workplaces around North Dakota, including over 110 cases tied to a Grand Forks manufacturing plant.

OSHA has made clear that the spread of COVID-19 in the workplace is a recordable illness, subject to its reporting requirements. On April 10, 2020, OSHA issued the “Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)”, hereafter referred to as the “Enforcement Memo.” The Enforcement Memo provides interim guidance to Compliance Safety and Health Officers (CSHOs) for enforcing recordkeeping requirements related to occupational illnesses.

Under the Enforcement Memo, employers must record cases of COVID-19 if three requirements are met:

1. The employee has been diagnosed with a confirmed case of COVID-19;
2. The case is “work-related”; and
3. The case involves one or more of the general recording criteria set forth by law.

The first element is met when an employee tests positive for the virus that causes COVID-19. Next, an illness is “work-related” if exposure in the workplace either caused or contributed to the illness. The third element, which requires that the case involve “general recording criteria” is met where the employee experiences any of the following:

• Days away from work;
• Restricted work or transfer to another job;
• Medical treatment beyond first aid;
• Loss of consciousness;
• Death;
• Significant injury or illness diagnosed by a licensed health care professional, even if it does not result in any of the above.

However, the Enforcement Memo has relaxed these rules for certain employers, as they relate to reporting COVID-19. OSHA recognizes that it may be difficult to determine whether a case of COVID-19 is “work-related” due to rapid community spread. Thus, OSHA will not require most types of employers to make the work-relatedness determination where there is ongoing community transmission. All employers must still complete the work-relatedness analysis if the following circumstances have been met:

(1) There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who are closely together without an alternative explanation; and

(2) The evidence was reasonably available to the employer. For purposes of the Enforcement Memo, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.

Additionally, employers of workers in the healthcare industry, emergency response organizations, and correctional institutions must continue to make work-relatedness determinations.

The Enforcement Memo took immediate effect and will remain in effect until further notice. However, it is intended to be time-limited to the current public health crisis, so it is advised that employers keep abreast of any forthcoming OSHA guidance.

The Takeaway:

The goal of this related policy is to help employers focus response efforts on implementing good hygiene practices and otherwise mitigating the effects of COVID-19, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.

This does not mean that an employer can be lax in monitoring the spread of COVID-19 in the workplace. It is recommended that all employers remain vigilant, and carefully consider all reporting requirements. In addition, employers that do not qualify for this exception must carefully consider all confirmed cases of COVID-19 among employees to determine whether a reportable illness has occurred. It is recommended that competent legal counsel be consulted when making the determination of whether to report.

It is important to stay up to date on all new laws and regulations that are being enforced due to COVID-19. By staying current on all things COVID-19, it can help you and your workplace get through these difficult and uncertain times.

Our Interest in Serving You:

Our law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email us at mcerkoney@ndlaw.com or amann@ndlaw.com. We promise to take your comments and ideas to heart.

Disclaimers (Otherwise known as “the fine print”)

We make a serious effort to be accurate in these writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.