The U.S. Department of Labor Clarifies COVID-19 Reporting Requirement for Employers
On April 10, 2020, the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) issued interim guidance clarifying OSHA’s recordkeeping requirement as it relates to recording cases of COVID-19.FN1
Under OSHA’s recordkeeping requirements,FN2 which certain covered employersFN3 are required to prepare and maintain records of serious occupational injuries and illnesses, COVID-19 is a recordable illness and employers are responsible for recording cases of COVID-19, if the case:
Is confirmed as a COVID-19 illness;
Is work-related as defined by 29 CFR 1904.5;FN4 and
Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.FN5
While employers still have to record confirmed cases of COVID-19 among their workers, the DOL is suspending enforcement of the requirement that employers determine whether the cases are work-related. The DOL reasoned that “this enforcement policy will help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work relatedness decisions in circumstances where there is community transmission.”
Work-related determinations still have to be made for health care, emergency response and correctional employees. Further, the DOL may still enforce the work-relatedness determination reporting requirement if (1) there is objective evidence that a COVID-19 case may be work-related; and (2) the evidence was reasonably available to the employer.
Takeaway
Although employers should continue to take measures to minimize the risk of COVID-19 transmission in the workplace, this new guidance relaxes recordkeeping requirements for most employers when faced with a confirmed case of COVID-19. As the DOL and other agencies continue to provide clarifications and guidance regarding the many COVID-19-related regulations, please contact Campbell Litigation, P.C. for assistance with compliance in your workplace.
Footnotes:
FN1 - https://www.dol.gov/newsroom/releases/osha/osha20200410-2
FN3 - Employers with 10 or fewer employees at all times during the previous calendar year are exempt from routinely keeping OSHA injury and illness records. However, if a business has more than 10 employees across several establishments in a calendar year, all establishments are then subject to the OSHA recordkeeping rules, unless otherwise exempt. See https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.1 Establishments in certain low-hazard industries are also partially exempt from routinely keeping OSHA injury and illness records. See https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.2
FN4 - An injury or illness is considered work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. See https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.5
FN5 – See https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.7