In Reversal, OSHA Says All Employers Must Record COVID-19 Cases

In a reversal, OSHA has altered its enforcement policy for recordable cases of COVID-19, adding that it will increase workplace inspections as economies reopen in states throughout the country.

The US regulator says that throughout the course of the pandemic, understanding about the transmission and prevention of infection has improved.

As such, OSHA has issued two revised enforcement policies to ensure employers are taking action to protect their employees. The new enforcement policies override existing guidance from April 10.

First, OSHA is increasing in-person inspections at all types of workplaces. This reflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread.

Second, OSHA is revising its previous enforcement policy for recording cases of coronavirus. Under OSHA’s recordkeeping requirements, coronavirus is a recordable illness, and employers are responsible for recording cases of the coronavirus, 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.

“Under the new policy issued today, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee coronavirus illnesses for all employers,” a press release reads.

“Given the nature of the disease and community spread, however, in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace. OSHA’s guidance emphasizes that employers must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.”

The regulator added that “recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.”

Because of the difficulty with determining work-relatedness, OSHA is exercising enforcement discretion to assess employers’ efforts in making work-related determinations.

When determining whether an employer has complied with the revised policy, OSHA instructs compliance officers to apply the following considerations:

• The reasonableness of the employer’s investigation into whether the COVID-19 case was work-related
• The evidence available to the employer
• The evidence that COVID-19 was contracted at work

“If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.”

Employers with no more than 10 employees and certain employers in “low-hazard industries” do not have an obligation to report COVID-19 cases unless a work-related illness results in death, in-patient hospitalisation, amputation or loss of an eye.