Effective May 26, 2020, the federal Occupational Safety and Health Administration (OSHA) is requiring employers in covered industries to record work-related incidences of COVID-19 (coronavirus) on Form 300 (Log of Work-Related Injuries and Illnesses). As an employer, you must record work-related illnesses on Form 300 unless you’re in an exempt industry or have 10 or fewer workers. As we previously reported, OSHA initially issued guidance that relaxed its enforcement of COVID-19 recording for all employers except health care institutions, emergency response organizations, and correctional institutions. Most employers didn’t have to determine whether COVID-19 was “work-related,” except under particular circumstances. Now, OSHA has switched gears and issued new guidance stating that all covered employers must record work-related incidences of COVID-19. The new guidance is effective until further notice. (Note: Cal/OSHA has released specific guidance for California employers that takes precedence over these requirements and is described separately below.) Under OSHA’s recordkeeping requirements, employers must record cases of COVID-19 on Form 300 if:
- The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
- The case is work-related (see below); and
- The case results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or significant injury or illness diagnosed by a licensed health care professional.
The second point is the most difficult: determining whether cases of COVID-19 are work-related. In the new guidance, OSHA states that it doesn’t expect employers to undertake extensive medical inquiries. Instead, if you as the employer learn your worker contracted COVID-19, you should ask how they think they contracted it, discuss work activities and off-work activities that may have contributed to getting the virus (while respecting employees’ privacy), and review their work environments for potential exposure issues, including other workers who may also have contracted COVID-19. In the event of OSHA investigations into failures to record work-related cases of COVID-19, investigators will look at all the evidence that was reasonably available to you at the time you made work-relatedness determinations plus evidence that later became available to you.
OSHA says there’s no special formula for determining whether a case of COVID-19 is work-related, but gives examples of evidence that “may weigh in favor of or against work-relatedness.” For example, cases are more likely to be work-related if:
- Several cases develop among workers who work closely together and there’s no alternative explanation;
- A case is contracted shortly after lengthy, close exposure to a particular customer or coworker with a confirmed case and there’s no alternative explanation; or
- A worker’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there’s no alternative explanation.
On the other hand, cases are likely not work-related if:
- A worker is the only worker to contract COVID-19 in the workplace vicinity and the worker’s job duties don’t include having frequent contact with the general public, regardless of the rate of community spread; or
- The worker closely and frequently associates outside the workplace with someone such as a family member, significant other, or close friend who (1) has COVID-19; (2) isn’t a coworker ; and (3) exposes the worker during the period in which the other individual is likely infectious.
The guidance instructs investigators to also consider any evidence of causation presented by medical providers, public health authorities, and the individual worker in question. After making reasonable and good faith efforts to determine work-relatedness as described in the guidance, if employers still can’t determine whether it’s more likely than not that workplace exposure caused particular cases of COVID-19, employers don’t have to record those cases on Form 300.
Special requirements in California: California employers have additional obligations. Cal/OSHA recently issued FAQs which broaden the obligation to record COVID-19 cases beyond the federal requirements. For example, Cal/OSHA doesn’t require a positive COVID-19 test to make a case recordable, due to limited availability of testing in California. Cal/OSHA even says that employers should record positive cases that haven’t yet been diagnosed; cases in which the onset of symptoms didn’t begin at work, if there’s cause to believe the cases are at all work-related; and cases in which workers become sick at work, stating that, for “reporting purposes, it does not matter if the illness is work-related.” Cal/OSHA says employers should generally “err on the side of reporting” COVID-19 cases to the agency.
Tips For Employers: For workplaces located in Arizona, Idaho, Montana, Oregon, and Washington, review federal OSHA’s revised guidance and record any work-related incidences of COVID-19 accordingly. Although Arizona, Oregon, and Washington have their own workplace safety and health agencies, they haven’t released any special recordkeeping requirements specific to COVID-19. If that changes, we’ll let you know. If you have 10 or fewer employees, or if your establishment fits within OSHA’s regulatory list of exempt industries (or your state’s counterpart list), you’re exempt from these recordkeeping requirements, unless OSHA or your state agency has specifically told you otherwise. Questions? Contact your Vigilant safety professional.