COVID Update: New OSHA Recordkeeping Enforcement Policies

As businesses begin to reopen across the United States, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued revisions of their recordkeeping enforcement policies on COVID-19. OSHA’s revised policies are effective May 26, 2020, and aim to ensure employers are recording and reporting COVID-19 cases in the workplace. Take a look at the new guidance:

Employer COVID-19 Recordkeeping Requirements

OSHA’s new policy will enforce more stringent recordkeeping requirements related to COVID-19 for all employers. OSHA’s recordkeeping requirements consist of recording certain injuries and illnesses related to work. Under the new policy, employers are responsible for recording cases of COVID-19 among employees, if:

• The case is a confirmed positive case of COVID-19;
• The case is work-related as defined by 29 CFR 1904.5; and
• The case involves one or more of the general recording criteria in 29 CFR 1904.7, such as death, days away from work, medical treatment beyond first aid, restricted work or transfer to another job, or loss of consciousness.

Determining Work-Related COVID-19 Cases

With a better understanding of the coronavirus and its transmission, OSHA is placing a greater responsibility on employers to determine which cases result from exposure in the workplace and are therefore recordable.

Because of the pervasive spread of the disease, the potentially lengthy incubation period, and the unknown precautions employees are taking outside of the workspace, OSHA recognizes the difficulty in determining whether an employee COVID-19 case is work-related. Compliance Safety and Health Officers (CSHOs) will assess the efforts of employers in making those determinations. Considerations will include:

• The reasonableness of the employer’s investigation into work-relatedness
• The evidence available to the employer
• The evidence that COVID-19 was contracted at work

Read more about the considerations CSHOs should apply to assess employers’ efforts in making work-related determinations here.

Small Business Exceptions for Recordkeeping

OSHA’s recordkeeping requirements are for all employers, across all industries, with leeway permitted for small businesses with ten or fewer employees, often because they cannot easily access employees’ medical information. OSHA will refrain from aggressive enforcement of policy for small companies, with the exception of work-related coronavirus cases resulting in a fatality, in-patient hospitalization, amputation, or loss of an eye. Under those occurrences, it is mandatory that small business employers record the COVID-19 work-related cases. 

It is important to note that recording a work-related coronavirus case does not indicate an employer is in violation of OSHA’s regulations.

If you are a client of FrankCrum with a work-related COVID-19 case, please consult with FrankCrum for a full investigation.