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May 20, 2020
On April 13, 2020, we reported that the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued enforcement guidance for recording cases of COVID-19. Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19 if the case:
OSHA’s initial enforcement guidance advised that, until further notice, it would not enforce its recordkeeping requirements to require employers – other than those in the healthcare industry, emergency response organizations, and correctional institutions – to make work-relatedness determinations for COVID-19 illnesses.
However, yesterday (May 19, 2020), OSHA revised its policy. Under the new policy, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee COVID-19 illnesses for all employers. OSHA recognizes that it remains difficult to determine whether a COVID-19 illness is work-related, given the nature of the disease and community spread. OSHA, thus, emphasizes that employers must make “reasonable efforts” to determine whether a COVID-19 case is work-related. To determine an employer’s “reasonable efforts,” OSHA will consider (1) the reasonableness of the employer’s investigation into work-relatedness; (2) the evidence available to the employer; and (3) the evidence that a COVID-19 illness was contracted at work.