By Conn Maciel Carey’s COVID-19 Task Force

As previously discussed on the OSHA Defense Report blog, on April 10, 2020, Federal OSHA issued enforcement guidance for recording cases of COVID-19, relaxing recordkeeping enforcement for employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions.  Unfortunately, the guidance does not mandate that State Plan States follow suit, and not all states with approve OSH Programs have announced whether they will be following Fed OSHA’s guidance.

The state of Washington has not published any guidance on that issue one way or the other.  But here is what we have learned from the Washington Department of Labor and Industries (“DLI”) Division of Occupational Safety and Health (“DOSH”).

As a threshold matter, as we know from Fed OSHA recordkeeping, among other requirements, for an injury or illness to be recordable, it must be “work-related.”  The language of Washington DLI’s recordkeeping regulation regarding assessing work-relatedness mirrors the Fed OSHA regulation.  They both state that an employer:

“must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness.”

Work-relatedness is presumed for injuries and illnesses resulting from events or exposures that occur in the work environment, unless an enumerated exception applies, and the work-relatedness exceptions for Fed OSHA and Washington are also the same.

Importantly, Washington DLI also has Continue reading →