Most employers are required to keep an OSHA 300 log if an employee suffers a recordable illness or injury that is “work-related,” as well as complete an OSHA Form 301 (or equivalent) in connection with these injuries. A Summary of the log must be posted by the employer annually. Employers are also required to notify OSHA directly if an employee death, hospitalization, amputation, or loss of an eye is work-related. Fatalities must be reported within 8 hours and the remainder within 24 hours. Under the OSHA regulations, employers are not required to report the common cold or even the flu on OSHA 300 logs, so what about the novel coronavirus?
OSHA is taking the position in guidance released that COVID-19 is not the cold or the flu and that it must be reported by employers on OSHA 300 logs when the following criteria are met: (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 work-related; and (3) the case involves one or more of the general recording criteria set forth in applicable regulations, such as days away from work or medical treatment beyond first aid. Under OSHA’s long-standing regulations, employers are required to consider an injury or illness to be work-related if an event or exposure in the work environment caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.
With community spread of COVID-19 employers have been struggling to determine when it is work-related—a challenge OSHA recognized in its recent guidance when it exercised its enforcement discretion. According to the guidance, until further notice, because of the difficulty with determining work-relatedness, OSHA will assess whether an employer has complied with its obligation and made a reasonable and good faith determination of work-relatedness by reviewing the following factors:
- The reasonableness of the employer’s investigation into work-relatedness. The guidance indicates that employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It will be sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, to take the following steps: (1) ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential COVID-19 exposure, including review of other instances of COVID-19 in your workplace.
- The evidence available to the employer. When making their determination of work-relatedness, employers should consider the information reasonably available at the time the determination is made. However, if the employer later learns more information related to an employee’s COVID-19 illness, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.
- The evidence that a COVID-19 illness was contracted at work. Again, employers should consider all reasonably available evidence. The guidance indicates that while it is not a set formula, certain types of information, such as the following, may weigh in favor or against a work-relatedness determination:
- COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if their job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- An employee’s COVID-19 illness is likely not work-related if they are the only worker to contract COVID-19 in their vicinity and their job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- An employee’s COVID-19 illness is likely not work-related if they, outside the workplace, closely and frequently associate with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
- Employers should give due weight to any evidence of causation, pertaining to the employee illness at issue, provided by medical providers, public health authorities, or the employee herself.
If an employer conducts a reasonable and good faith inquiry as outlined above and cannot determine that it is “more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19,” the employer does not need to record that COVID-19 illness on its OSHA 300 log or complete the OSHA Form 301.
Keeping up to date and in compliance with OSHA’s recordkeeping and reporting requirements is a must for your business. Employers who have questions about any of these issues should feel free to contact us at (413) 737-4753. In the meantime, Skoler Abbott continues to monitor all developments related to the COVID-19 crisis, and we will continue to publish updates on our blogs.