Federal and state OSHA programs do not typically require employers to record cases of flu or the common cold. Fed/OSHA has stated that this exemption for an illness does not apply to COVID-19, however. Fed/OSHA released an enforcement memo on Friday, April 10, clarifying their guidance to compliance safety and health officers regarding positive COVID-19 cases. Their memorandum is considered interim guidance to their enforcement officers but provides clarification on what OSHA considers to be recordable.
Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if: (1) the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC); (2) the case is work-related as defined by 29 CFR § 1904.5; and (3) the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
Fed/OSHA recognized that in areas where there is on-going community transmission, it is difficult to determine whether a case of COVID-19 is work-related or not. Because of this difficulty, Fed/OSHA has decided not to enforce 29 CFR section 1904 other than for employees working in the healthcare industry, emergency response organizations, and correctional institutions. 29 CFR Section 1904 houses OSHA regulations on recording criteria for work-related injuries and illnesses. Fed/OSHA also clarified that for a positive case of COVID-19 to be recorded as work-related for a now exempt employer, the following would need to be considered:
- There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
- The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.
View the OSHA Enforcement Memo for more information.