OSHA Adopts Revised Enforcement Policy for Recording Cases of COVID-19

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Patricia Tsipras

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:

• Is confirmed as a coronavirus illness;
• Is work-related as defined by 29 CFR 1904.5; and
• Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

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.