OSHA Reinstates Enforcement of COVID-19 Recordkeeping Requirements

Man writing on clipboard to record COVID-19 cases for OSHA Hawaii

With states across the country slowly reopening their economies, the Occupational Safety and Health Administration (OSHA) released new requirements for employers regarding COVID-19 recordkeeping that reverses its previous guidance.

Under the new requirements, effective May 26, 2020 , all employers must make work-related determinations if and when an employee contracts COVID-19. Previous guidance from OSHA only required this of employers in high-risk industries like hospitals, emergency response, or correctional institutions, with some exceptions.

“Within the boundaries of the law, employers will now need to investigate to determine if an employee contracted COVID-19 in the workplace,” says simplicityHR by ALTRES Senior Safety Consultant Ben Kinney.

“If an employer determines that the employee contracted COVID-19 at work, they’ll need to record it on their OSHA Form 300.”

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness if:

  1. The case is a confirmed case of COVID-19 as defined by the Centers for Disease Control and Prevention (CDC);
  2. The case is reasonably believed to be work-related; and
  3. The case involves one or more general recording criteria (e.g. medical treatment beyond first aid, days away from work)

Certain employers in low-hazard industries and those with fewer than 10 employees only need to record a work-related COVID-19 illness that results in death, in-patient hospitalization, amputation, or loss of an eye.

How to Make COVID-19 Work-Related Determinations Under the New Guidance

Given most employer’s lack of expertise in this area and concerns over employee privacy, employers are not expected to undertake extensive investigations to make COVID-19 work-related determinations.

In most circumstances, if an employer learns of an employee’s COVID-19 illness, it is sufficient to:

  1. Ask the employee how they believe they contracted COVID-19;
  2. Discuss the employee’s work and nonwork activities that may have led to the COVID-19 illness (while respecting privacy); and
  3. Review the employee’s work environment for potential COVID-19 exposure (e.g. whether other employees tested positive, the employee’s job duties and exposure to the public, social distancing measures taken)

Employers should be cautious when making medical-related inquiries to employees as there are privacy issues related to employment laws like the Americans with Disabilities Act (ADA) they could run afoul of.

Using the information reasonably available at the time of the investigation, an employer will need to determine the likelihood that the employee contracted COVID-19 at work. If more information becomes available later, an employer must also take that into account to make a work-related determination.

If Hawaii employers need help making work-related determinations about a COVID-19 case, they can rely on two resources according to Kinney.

“They can check with a worker’s compensation insurance adjustor, who can help them determine if the case is compensable or work-related, or contact the Department of Health for help.”

If there is a confirmed COVID-19 case in the workplace

If there is a strong likelihood that an employee contracted COVID-19 in the workplace, employers should code it as a respiratory illness on their OSHA Form 300. Hawaii employers may also use WC-1 Employer’s Report of Industrial Injury, in place of OSHA Form 301, when logging the incident. If an employee voluntarily requests that their name not be entered on the log, you must comply.

In its guidance, OSHA states that recording a COVID-19 illness does not, of itself, mean an employer violated any OSHA standard.

For simplicityHR clients, we’ve got this covered for you. We are ready to assist with any questions you have and ask that you continue to report to us as usual so we can complete your OSHA 300 logs.

For COVID-19 cases (and for any other disability), keep in mind that the Americans with Disabilities Act (ADA) requires employers to:

  • Treat this information as a confidential medical record
  • Engage in an interactive process with them
  • Provide reasonable accommodations

Confidential medical information may only be shared in very limited circumstances. However, employers do have an obligation to inform other employees of their possible exposure so they can take proper measures.

To safeguard privacy of the affected employee, exclude their name from all communication to other employees regarding the incident. Also do not indicate that someone is out sick on a schedule that other employees can see. Simply note that they are out of the office or unavailable.

If necessary, employers may want to consider contact tracing to help stop the spread of COVID-19. Know who is coming into your workplace and consider maintaining a log of guest names in case follow-up is required.

This article is for informational purposes only and does not constitute legal advice. Readers should first consult their attorney, accountant or adviser before acting upon any information in this article.