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The biggest trend we are seeing on the COVID-19 front this week is that those Employers that are continuing to operate are now being faced with employees reporting that they have tested positive for COVID-19 or have been exposed to the virus. Such reports require you as an employer to comply with the CDC guidelines for COVID-19 in the CDC Interim Guidance we sent last week. What you may not have realized is that employers who get such reports also must comply with certain duties and responsibilities that have been established by the Department of Labor’s Occupational Safety and Health Administration (OSHA). OSHA has issued guidance for enforcing OSHA’s recordkeeping requirements for COVID-19 cases. OSHA recordkeeping requirements mandate that covered employers record certain work-related injuries and illnesses on their OSHA 300 log. This guidance is particularly important to Essential Businesses continuing to function under “shelter-in-place” or quarantine orders, and whose employees are considered critical infrastructure workers.

Employers’ Recordkeeping Obligation

Under OSHA’s record-keeping regulation, certain covered employers are required to prepare and maintain records of serious occupational injuries and illnesses using the OSHA 300 Log. This information is important for employers, workers and OSHA in evaluating the safety of a workplace, understanding industry hazards, and implementing worker protections to reduce and eliminate hazards. However, there are two classes of employers that are partially exempt from routinely keeping injury and illness records. First, employers with ten or fewer employees at all times during the previous calendar year are exempt from routinely keeping OSHA injury and illness records. Second, establishments in certain low-hazard industries are also partially exempt from routinely keeping OSHA injury and illness records.

The OSHA Form 300 is a form for employers to record all reportable injuries and illnesses that occur in the workplace, where and when they occur, the nature of the case, the name and job title of the employee injured or made sick, and the number of days away from work or on restricted or light duty. According to OSHA’s guidance, COVID-19 is a recordable illness, and must be recorded on an Employer’s OSHA 300 log if:

  • The case is a confirmed case of COVID-19 (meaning an individual has at least one respiratory specimen that tests positive for SARS-CoV-2, the virus that causes COVID-19);
  • The case is work-related (as defined by 29 CFR § 1904.5); and
  • The case involves one or more of the following: if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond “first aid,” or loss of consciousness (OSHA provides a specific and complete definition of “first aid” in 29 CFR § 1903.7(b)(5)(ii)).

Limited Enforcement Waiver

Given the difficulty in determining whether COVID-19 was contracted while on the job, OSHA will not enforce its recordkeeping requirements that would require employers to make work-relatedness determinations for COVID-19 cases, except under the following circumstances:

  • There is objective evidence that a COVID-19 case may be work-related; and
  • The evidence was reasonably available to the employers.

This waiver of enforcement does not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions. These employers must continue to make work-relatedness determinations.

Conclusion

Our recommendation is to err on the side of over-reporting potential cases or exposures to COVID-19 on your OSHA Form 300. Schwartz Rollins will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate.

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