The Coronavirus (COVID-19) pandemic is a fluid and constantly evolving situation that will require employers to be flexible. We all must commit to staying up to date with the latest developments from public health and government agencies, including the Centers for Disease Control and Prevention (CDC), World Health Organization (WHO), Department of Labor (DOL), and Occupational Safety & Health Administration (OSHA).
Staying informed is critical, since specific guidance may change based upon evolving outbreak situations. We wanted to communicate an important update from OSHA regarding COVID-19 and the agency’s recordkeeping requirements that employers might not be aware of.
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Is your organization required to keep OSHA logs?
First, before moving any further with discussing recording COVID-19 case, you should determine whether you are actually required by OSHA to maintain recordkeeping logs of occupational injuries and illnesses. For example, if your organization has 10 or fewer employees — including temporary and contract workers, you are not required to comply with OSHA’s recordkeeping regulations. In addition, some employers in low-risk industries are exempt based on their North American Industry Classification System (NAICS) codes.
Only organizations in high risk industries with over 10 employees are required to track work-related employee injuries and illnesses on OSHA’s three recordkeeping logs. These logs are also known as OSHA Forms 300, Form 301, and 300A.
If you’re still unsure whether your organization needs to maintain these OSHA logs, we suggest you check out our more detailed, ultimate guide to OSHA recordkeeping.
Is an employee confirmed with COVID-19 recordable on the OSHA Form 300 Log?
Assuming your organization is required to maintain work-related injury and illness records, if there has been a confirmed case of an employee contracting COVID-19 in which their work environment was likely the cause or contributing factor of the illness, then the case might be recordable if one of the following circumstances occur:
- Medical treatment (beyond first aid) is provided. Given what we know about the virus currently, it's likely that medical treatment or days away (lost time) will occur with COVID-19 cases;
- Restricted work is imposed by the employee's treating physician or your employer;
- Days away from work (lost time) is imposed by the treating physician. In other words, if the employee is kept from work and cannot work at home due to the virus;
- The illness is a confirmed case of COVID-19. See the CDC’s information for clarification on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19;
- The case has been determined to be work-related.
it can be difficult to definitively determine whether a case of COVID-19 originated from an exposure in the workplace. As a result, OSHA has issued guidance on determining work-relatedness for COVID-19 illnesses. For more on that, read on to the next section.
OSHA's Guidance on COVID-19 and Work-Relatedness
On April 10, 2020, OSHA indicated that it would be exercising “enforcement discretion” and focusing COVID-19 recordkeeping requirements in the healthcare, emergency response, and correctional institution fields only—except where there was objective evidence reasonably available to an employer that a COVID-19 case was work-related.
However, in a recently issued memorandum, the agency has since rescinded this guidance and states that all employers subject to its illness record-keeping rules must now track and report workplace COVID-19 cases if the following three criteria are met:
The COVID-19 case is confirmed (as defined by the CDC);
The case is work-related (as defined by 29 C.F.R. § 1904.5); and
The case involves one or more of the general recording criteria (as set forth in 29 C.F.R. § 1904.7).
OSHA reasons that confirmed COVID-19 cases have now been found in nearly all parts of the country and among many industries, and that employers are presently more capable of adapting to new ways of doing business and evolving their COVID-19 response efforts.
Nevertheless, the agency still acknowledges the difficulty in determining work-relatedness of cases, and will thus continue to exercise enforcement discretion with regard to employer’s work-related determinations. OSHA's key considerations will be:
- The reasonableness of the employer’s investigation into work-relatedness;
- the evidence available to the employer;
- and the evidence that a COVID-19 illness was contracted at work.
If the case is recordable, can it be considered a privacy case and kept on a separate log?
As a refresher, an incident is considered a privacy case if it involves any of the following circumstances:
- An injury or illness to an intimate body part or the reproductive system;
- An injury or illness resulting from a sexual assault;
- Mental illnesses
- HIV infection, hepatitis, or tuberculosis;
- Needlestick injuries and cuts from sharp objects that are contaminated with another person's blood or other potentially infectious material
So, technically no, as privacy cases are defined very specifically in OSHA’s regulations, a COVID-19 exposure case does not meet that definition.
Is an employee confirmed with COVD-19 reportable to OSHA?
OSHA’s normal criteria for reporting severe injuries applies even to COVID-19 cases.
This means that employers must report any employee fatality within 8 hours and any amputation, loss of an eye, or hospitalization of a worker within 24 hours.
It should be noted that employers are required to report a severe injury if it meets this criteria to OSHA, even if they are exempt from OSHA’s recordkeeping rule.
The only way a COVID-19 case would need to be reportable to OSHA would be if the exposure results in a work-related fatality of an employee, or if the employee is hospitalized as an in-patient as a result of COVID-19 contracted from performing work-related duties.
While OSHA's memorandum on determining work-relatedness is less clear about reporting COVID-19 positive cases, it's reasonable to infer that if a case is not recordable because it is difficult to determine work-relatedness, then that equally applies to reporting such cases where approriate critieria was met.
Hopefully, OSHA will clarify the scope of this enforcement guidance so employers can rest assured they are in full compliance with OSHA requirements. We'll continue to update this article as new information becomes available, so stay tuned!
The Bottom Line: Why is it important to track exposures to COVID-19?
Recording and tracking COVID-19 Exposures allows safety professionals to:
- Identify locations where COVID-19 exposures have taken place to take proactive measures to protect at-risk employees
- Monitor conditions of exposed employees for symptoms of COVID-19 that may not appear for up to 14 days after exposure.
- Document test results of exposed employees.
- Maintain OSHA Compliance for injury & illness recordkeeping purposes if employees contract COVID-19 during work-related activities.
- This is particularly important for recording missed days of work due to quarantine and treatment.
We hope that you found this blog article to be helpful. For more information on how EHS managers can address and manage COVID-19 in their workplaces, see our first post in this series.