OSHA and COVID-19: What are my Recording and Reporting Requirements?

This does not mean, however, that OSHA regulations do not apply to issues created by the COVID-19 pandemic.

One such regulation is the traditional recordkeeping and reporting requirements provided in 29 CFR Part 1904.  Specifically, qualifying employers must record on their OSHA 300 log cases of COVID-19 amongst their workers in certain situations.  Not all situations were a worker has tested positive for COVID-19 must be recorded.  According to OSHA, an employer must record a COVID-19 case only when all three of the following are met:

1. The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
2. The case is work-related, as defined by 29 CFR 1904.5; and
3. The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first aid, days away from work.)

In addition to logging recordable work-related injuries and illnesses, when those work-related injuries and illnesses require hospitalization the employer must report them to OSHA within 24 hours.  The employer must report the illness or injury to OSHA within eight hours of learning of an employee’s death. For example, if an employee dies from a confirmed case of COVID-19 he contracted at work, the employer must both record the death in its OSHA 300 logs and report the death to OSHA within 8 hours of learning of the death.

A big issue for recording and reporting is determining if the COVID-19 infection that the employee suffers from constitutes a work-related injury.  To be work-related the illness has to be acquired because of work-related duties.  In recent guidance provided by OSHA, it stated that employers are required to track and report instances where workers contracted COVID-19 on the job, not stemming from exposure to the coronavirus while off the clock.

Several employers have already pointed out the difficulty of determining if an employee contracted COVID-19 at their place of employment versus somewhere else.  For example, what if an employee shows up to work with symptoms? In such a situation it would seem that an employer could not link the infection to the workplace.  But what if after that employee tests positive several other employees also test positive?  In that situation, it appears that the employees contracted the illness at work. 

While there is no easy answer to the question of whether the infection is a work-related, employers should carefully consider an employee’s work duties and environment, and the circumstances surrounding an individual case, in undertaking the fact-specific inquiry of whether to record and report an employee’s infection. 

For assistance in determining the application of this recording requirement or other OSHA regulations that may be impacted by the COVID-19 pandemic, please contact one of our attorneys.

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