OSHA Recordkeeping and Reporting Requirements for COVID-19 (Coronavirus and the Law)


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Healthcare Compliance Resources

Recordability on an employer’s OSHA 300 log of an employee’s infection with COVID-19 will, in most cases, depend on whether the employee’s exposure to the virus and subsequent infection are “work-related” within the meaning of OSHA’s injury and illness recordkeeping and reporting rule. The reporting of a COVID-19 infection will depend on the result of the infection.

[clear]Recordability of a COVID-19 Illness

Generally speaking, under 29 C.F.R. 1904.4, an employee testing positive for COVID-19 will have a recordable illness when:

  1. It’s a new case,
  2. The infection is “work-related,” as defined by 29 CFR 1904.5. This means that it was “more likely than not” contracted at or during work, and
  3. It resulted in certain bad outcomes, namely death, days away, restricted work or job transfer, treatment beyond first aid, loss of consciousness, or diagnosis as a significant illness by a medical professional (29 CFR 1904.7.)

With COVID-19, the first and last of these criteria will probably be easily met. Any cases will likely be new since we have never seen the virus before this outbreak. Furthermore, it is likely to be diagnosed as a significant illness. In addition, since most, if not all, infected people have to be quarantined for weeks, the COVID-19 infection will result in days away from work (or worse).

If an employee is symptomatic, but not yet a confirmed case, it is not recordable, and there is no need to evaluate work-relatedness. For any confirmed case, treatment protocols will very likely meet recording protocols (i.e., days away from work at the very least, and likely medical treatment beyond first aid). Therefore the key to determining recordability is whether the employee’s infection with COVID-19 is work-related, or whether the employee was exposed in the work environment (which is anywhere the employee is performing work-related duties).

If the employee is exposed outside the work environment and then shows signs or symptoms while present in the workplace, the illness is not work-related and thus not recordable.

Determining if an Illness is Work-Related

In order for a case to be work-related, the employee has to actually be infected while performing their assigned duties for their employer (at work) — it is not enough that he/she contracts the disease outside of work and displays symptoms at work.

Work-relatedness may not be possible to determine since the precise time and location of an employee’s exposure to the virus can be difficult to determine. Employers should do a comprehensive assessment to determine whether the facts and circumstances indicate a likelihood of exposure in the work environment. There are several factors that should be taken into account, including, but not limited to:

  1. The nature of the work environment and the type of work performed.
  2. The extent of personal interaction in the workplace and risk of person-to-person spread.
  3. Whether there are known cases in the community.
  4. Whether there are other known cases within the company or work environment.
  5. Whether the employee has recently traveled to other communities (taking into account the location and mode of travel).
  6. Whether the employee lives with an infected individual.
  7. Whether the employee has engaged in any other known activity outside of work that presents an exposure risk.

Healthcare workers are generally viewed to be at a higher risk of work-related exposure than non-healthcare workers. If an employee becomes infected while working from home or telecommuting, work-relatedness will depend on whether the exposure was directly related to the performance of work. A good example would be a home health nurse exposed while caring for an infected individual while conducting an in-person treatment or procedure, as opposed to the general home environment or setting (e.g., the employee lives with an infected individual).

Reportability of a COVID-19 Illness

If the above criteria for recordability are met, the case may also be reportable to OSHA if it results in a fatality or a formal in-patient hospitalization of at least one employee who receives any treatments while in the hospital. To be reportable, a fatality must occur within 30 days of the work-related event or exposure that resulted in the COVID-19 infection and must be reported to OSHA within 8-hours. Similarly, a hospitalization must occur within 24 hours of the work-related event or exposure to be reportable and must be reported to OSHA within 24-hours.

Read more legal updates on COVID-19 from Woods Rogers attorneys.

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