May 19, 2020

OSHA Updates COVID-19 Recordkeeping Guidance

On May 19th OSHA published notice that effective May 26th it will rescind and replace its previous guidance on covered employers’ COVID-19 recordkeeping obligations. Under the new guidance rule, COVID-19 is a recordable illness, and thus 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; and
  • the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

What if I cannot determine if the three factors above have been met? OSHA’s guidance provides, “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether 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. In all events, it is important as a matter of worker health and safety, as well as public health, for an employer to examine COVID-19 cases among works and response appropriately to protect workers, regardless of whether a case is ultimately determined to be work related.”

Who is a covered employer? Employers with 11 or more employees are covered under OSHA’s recordkeeping rule, unless otherwise exempt.

How do I determine if I am an exempt employer? Have your Standard Industry Classification (SIC) code handy and click here.

Tip: Use care and diligence in making your determination whether or not to record a COVID-19 illness of an employee.  The OSHA guidance also provides a list of factors in three key areas that they will use to determine if an employee may the proper determine: (1) the reasonableness of the employer’s investigation into work-relatedness; (2) the evidence available to the employer; and (3) the evidence that a COVID-19 illness was contracted at work.  Read the full guidance here; it’s only 2-3 pages.