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.
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.
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:
it can be difficult to definitively determine whether a case of COVID-19 originated from 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.
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:
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 the employer’s work-related determinations. OSHA's key considerations will be:
As a refresher, an incident is considered a privacy case if it involves any of the following circumstances:
So, technically no, as privacy cases are defined very specifically in OSHA’s regulations, a COVID-19 exposure case does not meet that definition.
In April 2021, OSHA issued new frequently asked questions (FAQs) on recording illnesses. The FAQs state that, in general, an adverse reaction to a COVID-19 vaccine is recordable if the reaction is work-related, a new case, and meets one or more of the general recording criteria in 29 CFR 1904.7.
In addition, if employers require employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the vaccine is work-related. Adverse reactions are recordable if they are new cases under 29 CFR 1904.6 and meet one or more of the general reporting criteria in 29 CFR 1904.7.
OSHA is not currently requiring employers to record adverse effects from COVID-19 vaccines that are recommended, but not required.
Yes, OSHA’s normal criteria for reporting severe illnesses applies to work-related, confirmed COVID-19 cases.
It should be noted that employers are required to report a severe illness if it meets this criterion to OSHA, even if they are exempt from OSHA’s recordkeeping rule.
Under 29 CFR 1904.39(b)(6), employers are required to report in-patient hospitalizations to OSHA if the hospitalization "occurs within twenty-four (24) hours of the work-related incident."
For cases of COVID-19, the term "incident" means an exposure to SARS-CoV-2 in the workplace. Therefore, in order to be reportable, an in-patient hospitalization due to COVID-19 must occur within 24 hours of an exposure to SARS-CoV-2 at work.
The employer must report such hospitalization within 24 hours of knowing both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19.
So, if an employer learns that an employee was in-patient hospitalized within 24 hours of a work-related incident, and determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19, the case must be reported within 24 hours of that determination.
Under 29 CFR 1904.39(b)(6), an employer must "report a fatality to OSHA if the fatality occurs within thirty (30) days of the work-related incident."
For cases of COVID-19, the term "incident" means an exposure to SARS-CoV-2 in the workplace. Therefore, in order to be reportable, a fatality due to COVID-19 must occur within 30 days of an exposure to SARS-CoV-2 at work.
The employer must report the fatality within eight hours of knowing both that the employee has died, and that the cause of death was a work-related case of COVID-19.
Thus, if an employer learns that an employee died within 30 days of a work-related incident, and determines afterward that the cause of the death was a work-related case of COVID-19, the case must be reported within eight hours of that determination.
Recording and tracking COVID-19 Exposures allows safety professionals to:
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.
