On May 19, the Occupational Safety and Health Administration (OSHA) revised its policy for when employers have to record COVID-19 cases in their injury and illness logs.
Under the revised policy, employers who are otherwise required to keep OSHA logs must make a determination as to whether workers’ COVID-19 cases are job-related. Previously, OSHA took the position that only healthcare employers, corrections facilities, and emergency-response providers were required to make that determination.
OSHA expects employers to perform an investigation into the determination of work-relatedness of COVID-19 cases, while acknowledging that the nature of the disease and the extent of its spread will make such determination difficult. OSHA will look to:
- The reasonableness of the employer’s investigation into work-relatedness: The employer should ask how the employee believes he or she contracted the virus; while respecting privacy, the employer should discuss activities that may have led to the employee contracting the virus, and the employer should review the work environment for potential exposure.
- The evidence available to the employer that COVID-19 was contracted at work: OSHA will consider whether the employer made a proper determination of work-relatedness based on the information reasonably available to the employer. While there is no simple formula to determine work-relatedness, certain types of evidence may weigh in favor of or against work-relatedness.
- Several cases develop among workers who work closely together, and there is no alternative explanation.
- An employee contracts COVID-19 shortly after lengthy, close exposure to a customer or co-worker who has a confirmed case of COVID-19, and there is no alternative explanation.
- An employee’s duties include frequent, close exposure to the general public in an area with ongoing community transmission, and there is no alternative explanation.
Likely Not Work-Related
- An employee is the only worker with COVID-19 and does not have frequent contact with the general public, regardless of the rate of community spread.
- An employee closely associates with someone outside the workplace who has COVID-19.
OSHA will give weight to any evidence of work-relatedness presented by medical providers, public health authorities, and the employee himself or herself.
If the employer conducts a reasonable and good faith inquiry as described above and cannot determine whether it is more likely than not that the exposure was work-related, the employer does not have to record the illness in its log.
However, OSHA emphasizes that it is most important that the employer investigate COVID-19 cases among employees and respond appropriately to protect workers, regardless of whether cases are considered work-related. OSHA also emphasizes that this guidance is intended to be time-limited to the current COVID-19 public health crisis and encourages employers to frequently check OSHA’s webpage for updates.