By Eric J. Conn and Lindsay A. Disalvo

There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions in recent days is the requirement to record and/or report work-related cases of COVID-19.  Below are two FAQs that describe the relevant analysis in more detail.

• Do I have to record a case of COVID-19 of an employee on my OSHA 300 Log?

By regulation, the common cold and flu are exempt from OSHA’s recordkeeping and reporting requirements (29 CFR Part 1904.5(b)(2)(viii)):

“The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work).”

The rationale for the exemption is that the spread of the cold and flu are so pervasive that it is typically near impossible to identify the source of infection; i.e., there would be no reasonable way to determine whether it was more likely than not that the illness was caused by an exposure in the workplace.

Despite great sacrifice around the country, the scale of infection of COVID-19 is expected to soon spread like the flu and common cold, but OSHA has already expressed in guidance that COVID-19 is not subject to the cold/flu recordkeeping exemption:

“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”

Industry has been advocating to OSHA to have the agency reconsider that initial declaration, but it does not appear OSHA will be exempting this novel strain of Coronavirus from the recordkeeping and reporting requirements any time soon.  OSHA has been maintaining a Safety and Health Topics page for COVID-19 and separate Guidance on Preparing Workplaces for COVID-19 that it updates periodically as more information becomes available.  In its most recent update to guidance, OSHA appeared to double down on its decision that employers must spend time determining whether cases of COVID-19 are work-related.  The guidance has been updated to be more explicit, with OSHA explaining that COVID-19 can be a recordable illness if the worker becomes infected while performing his or her work-related duties.

So, COVID-19 illnesses that are work related and that meet a recordkeeping criterion need to be recorded on the employer’s 300 Log, and potentially reported to OSHA.  There are, however, some important limitations and considerations in evaluating whether such a case is recordable or reportable.  OSHA clarified that employers will only be responsible for recording a case of COVID-19 if it meets the following criteria:

1. The case is a confirmed case of COVID-19;
2. The case involves one or more of the general recording criteria in 29 CFR 1904.7 (i.e., medical treatment beyond first aid; days away from work; etc.); and
3. The case is work-related as defined in 29 CFR 1904.5.

First, to be recordable, the illness must be a confirmed case of COVID-19.  The symptoms of COVID-19 are so similar to the cold and flu that in order to distinguish them, for OSHA recordkeeping purposes, the employee must have had a positive test.  It is not enough to self-diagnose or even to have a medical professional opine that an employee’s illness is likely Coronavirus.  Only a positive test clears the first criterion.

Second, as to whether the case meets one of the general recording criteria, note that quarantine can constitute days away from work to trigger recording.  That is true even if the employee’s symptoms are minor, and the employee would be physically able to work but for the quarantine.

Finally, to be work-related, an employer must determine whether it is more likely than not that an event or exposure in the work environment caused or contributed to the illness, based on a totality of the circumstances, including the employee’s work duties and environment.  In the 2001 Preamble to the Occupational Injury and Illness Recording and Reporting Requirements Final Rule, OSHA had this to say about evaluating contagious illnesses:

The same problem arises when an employee reports symptoms of a contagious disease that affects the public at large, such as a staphylococcus infection (“staph” infection) or Lyme disease, and the workplace is only one possible source of the infection. In these situations, the employer must examine the employee’s work duties and environment to determine whether it is more likely than not that one or more events or exposures at work caused or contributed to the condition. If the employer determines that it is unlikely that the precipitating event or exposure occurred in the work environment, the employer would not record the case. In the staph infection example given above, the employer would consider the case work-related, for example, if another employee with whom the newly infected employee had contact at work had been out with a staph infection. 

Thus, where it is unclear whether the employee was exposed to COVID-19 at work or through some other community spread, an employer should consider each case of COVID-19 on an individual basis and assess the available information about whether the employee’s work environment and/or work duties more likely than not exposed them.  While it may be possible to trace an exposure to the workplace, with the level of community spread we are seeing around the world, objectively concluding that the work environment was more likely than not the source of the exposure resulted in the employee’s illness is a big stretch.  Indeed, the CDC’s data demonstrates what a stretch that would be, as 92% of CDC-reported confirmed COVID-19 cases still have no known origin.

We know, however, that OSHA does NOT expect very many COVID-19 cases to be recorded or reported as work-related in general industry outside of healthcare and nursing care facilities.  Rather, the only time the agency would expect to see a conclusion that a COVID-19 case is work-related is when there is a “cluster” of confirmed cases among people who work closely together; e.g., 75% of the staff in your billing department contracted the virus around the same time after working closely together.

*        *        *        UPDATED 4/10/2020 BASED ON NEW OSHA GUIDANCE        *        *        *

On April 10, 2020, OSHA issued anticipated Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19).  Unfortunately, the guidance is either oddly worded or intended to be circular and narrow, at least on paper.  It does not outright exempt COVID-19 cases from recordkeeping, like the cold and flu are, and as-written, it is not entirely clear how much relief it does offer, we understand OSHA’s expectation is that it will significantly limit recordable cases outside of really high risk exposure workplaces, like hospitals.

What the guidance seems to do is establish a new standard for evaluating work-relatedness for industries outside of healthcare, emergency response, and prisons.  Here is what it says:

Until further notice, however, OSHA will not enforce 29 CFR § 1904 to require other employers to make the same work-relatedness determinations, except where:

1. 1. 1. 1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
         2. The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.

Read literally, it says non-healthcare employers do not need to undertake the work-relatedness analysis for COVID-19 cases, but if the work-relatedness analysis you do, shows evidence of work-relatedness.  But understanding its purpose is to limit recordkeeping, here is a reasonable takeaway about what the guidance means:

• If you are in the healthcare/emergency response/prison industries, you have to do the traditional careful, case-by-case work-relatedness analysis of every confirmed case that has always been required.
• If you are not in those industries, then you do NOT even have to do the work-relatedness analysis at all, UNLESS work-relatedness is slapping you in the face; i.e., it is so obvious it is work related because there is a cluster of cases among people who were working closely together, AND there is no other apparent exposure outside the workplace.

Because on paper, the guidance seems to technically swallow the relief it purports to offer, we still recommend that employers undertake some analysis of work-relatedness in each instance, and to do that, we recommend developing an assessment questionnaire about the circumstances of potential workplace and non-work exposures so you can effectively document the conclusion that the case is not more likely than not to be work related.

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• Under what circumstances do I have to report to OSHA a work-related confirmed COVID-19 illness that results in an employee hospitalization or death?

Here is an article with a detailed review of OSHA’s in-patient hospitalization rule.  To determine whether to report to OSHA a COVID-19 illness in particular, as a threshold matter, the same analysis as above must be done to determine whether it is a confirmed case and whether it is work related.  Assuming those criteria are met, then we look to 1904.39(a) to determine whether any particular reporting criteria (i.e., in-patient hospitalization or death) are met.

Work related in-patient hospitalizations are reportable 24 hours after the hospitalization and deaths are reportable to OSHA within 8 hours after the death.

However, pursuant to 1904.39(b)(6):

if a “fatality [or] in-patient hospitalization does not occur during or right after the work-related incident . . . [y]ou must only report a fatality to OSHA if the fatality occurs within thirty (30) days of the work-related incident [and] an in-patient hospitalization . . . if [the admission to the in-patient service of the hospital] occurs within twenty-four (24) hours of the work-related incident.”

When an employer assesses whether the death or in-patient hospitalization resulted from a work-related illness — like contracting COVID-19 from an exposure in the workplace — pursuant to 1904.5(b)(3), you must “evaluate the employee’s work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.”  In other words, in cases of illnesses due to exposures in the workplace, the triggering event is the time when the employer can best discern the employee was exposed to the contagion or chemical that caused the illness.

Thus, an employee’s in-patient hospitalization is only reportable to OSHA if an employer determines: (a) the employee was exposed to the virus while performing work-related duties, (b) when that exposure occurred; and (c) that the employee was admitted to the in-patient service of the hospital within 24 hours of that exposure.

It is highly unlikely that any case of COVID-19 would meet these factors.  First, as discussed above, it will be rare outside of the healthcare or nursing care sectors for an employer to determine the exposure that led to the illness more likely than not occurred in the workplace.  Second, even in those instances where a conclusion is made that a case is work-related, it is unlikely that any non-fatal COVID-19 case that results in an in-patient hospitalization will be reportable to OSHA because of the length of the latency/incubation period between exposure to the virus and the time symptoms begin to appear, let alone when the illness becomes so significant that it results in an in-patient hospitalization.  That will almost always be more than 24 hours.  According to the CDC, individuals typically do not begin showing symptoms until 2 to 14 days after the exposure.  Thus, in most cases, the exposure and ensuing illness, even if work-related, will at most result in a recordable event, not a reportable one.

For cases where the virus results in the employee’s death, the reporting window is 30 days; i.e., if it is determined to be work related, and it is a confirmed diagnosis, it would be reportable if the employee succumbs to the illness within 30 days of the exposure that resulted in the COVID-19 diagnosis.  That is a more likely scenario than the in-patient hospitalization, but again, the work-related conclusion (outside of healthcare, nursing care, and clusters in other workplaces) will be very rare.

For more information on this issue, as well as OSHA’s reporting rule generally, check out Conn Maciel Carey’s Fatality and Serious Injury Reporting Flow Chart. Also check out this link to recordings of several webinars about OSHA’s reporting rule conducted as part of Conn Maciel Carey’s annual OSHA Webinar Series.

And, of course, feel free to reach out to Eric J. Conn at econn@connmaciel.com or 202-909-2737, or any of the other OSHA-specialist attorneys in Conn Maciel Carey’s national OSHA Practice Group if you have questions about:

1. Whether a specific injury or illness is reportable to OSHA;
2. When the report is actually due;
3. How to make the report;
4. What information to share with OSHA in the report; and/or
5. How to manage OSHA’s response to the report.

We would love to be a resource for you, and would be happy to provide some free advice around these thorny recordkeeping and reporting issues.

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We will also be continuing to monitor OSHA’s guidance on how its regulations apply to the Coronavirus pandemic, and we will provide additional updates on these evolving issues.  In the meantime, check out the webinar put on by Conn Maciel Carey’s COVID-19 Task Force in March addressing “How Employers Can Respond to COVID-19.”

For additional employer resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 FAQ Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance. Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about COVID-19 and other important Labor & Employment and OSHA issues.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.