OSHA issued updated interim guidance to their inspectors for enforcing the requirements of 29 CFR 1904 with respect to the recording of occupational exposure to COVID-19. These new guidelines will be enforced as of May 26, 2020 and remain in effect until further notice.
Employers should be taking action to determine whether employee COVID-19 illnesses are work-related and deemed recordable. Given the nature of the disease and ubiquity of community spread, it can be difficult to determine whether a COVID-19 illness is work-related, especially when an employee has potential exposure both in and out of the workplace.
In light of these considerations, OSHA is exercising its enforcement discretion in order to provide certainty to employers and workers. OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee COVID-19 illnesses for all employers according to the guidelines below.
COVID-19 is considered a recordable illness under OSHA's record keeping requirements. Employers are responsible for recording cases of COVID-19, if:
- The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC)
- The case is work-related as defined by 29 CFR § 1904.5
- The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7
Recording a COVID-19 illness does not mean that the employer has violated any OSHA standard. And pursuant to existing regulations, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations; they need only report work-related COVID-19 illnesses that result in a fatality or an employee's in-patient hospitalization, amputation, or loss of an eye.
Like always OSHA looks at the employers intent. Were they trying to keep employees safe. In the absence of a standard it's important to demonstrate that commitment. Implement appropriate work practice and engineering controls to limit employees exposure to COVID-19 and be sure to document what is being done. Documentation should include training records that show employees have been trained on how to identify and limit exposure as well.