Employers long have been required to record and report work-related injuries and illnesses to OSHA. A new question in the pandemic environment is whether you have to record an employee who tests positive for COVID-19.

On April 10, 2020, the Occupational Safety & Health Administration (OSHA) issued interim guidance for the enforcement of employer recording requirements arising from COVID-19 illnesses. The guidance will remain in effect during the “current public health crisis.” The guidance clarifies that an employee’s illness is recordable if it:

• Is confirmed to be COVID-19,
• Is work related, and
• Involves at least one of the general recording criteria established under OSHA’s recordkeeping requirements.

If you determine that a COVID-19 illness is recordable, you should code them as respiratory illnesses on OSHA Form 300 and abide by employee requests to not include an employee’s name on the log. (Accordingly, ask the employee if he or she does not want a name included on the log.)

With respect to the second requirement above, healthcare industry, emergency response, and correctional institution employers must continue to make work-relatedness determinations pursuant to 29 CFR § 1904 (Recording and Reporting Occupational Injuries and Illnesses). However, for employers in other industries, OSHA will not enforce 29 CFR § 1904 unless “[t]here is objective evidence that a COVID-19 case may be work-related” and such evidence is reasonably available to the employer. OSHA’s intent is to help employers focus efforts on mitigating COVID-19 impacts through implementation of good workplace hygiene and other safety protocols rather than waste time on difficult work-relatedness decisions.

The interim guidance does not offer insight on what constitutes “objective evidence” that a COVID-19 infection may be work related, but the OSHA regulations may be instructive. An illness is work related “if an event or exposure in the work environment . . . caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.” Consider then the following scenario:

Employee A tests positive for COVID-19 on Monday and reports this illness to his employer. A week later Employee B and Employee C, who work closely with Employee A, also test positive for COVID-19.

In this example, Employee A’s positive result would likely not qualify as “work related” under the interim guidance because no prior evidence of COVID-19 in the workplace existed. However, the positive results for Employee B and Employee C may satisfy the “objective evidence” standard of the guidance. In the absence of an alternative explanation, a prior positive test of an employee with close contact with employees who are later confirmed to be ill may be “objective evidence” that the subsequent COVID-19 infections are “work related.” Similarly, positive tests from multiple individuals in the same department or group in a workplace may satisfy the “objective evidence” standard.

The illustration above is overly simplified and probably does not reflect more complicated, real-world workplace interactions. Rather than rely on such examples, it is important that you review the interim guidance and take appropriate steps to ensure compliance. If you have any questions about OSHA recordkeeping and reporting requirements or other issues related to COVID-19, please feel free to contact John Hargrove, Aman Kahlon, Chris Selman or Alex Thrasher.