On Safety: COVID-19 and OSHA recordkeeping

Many employers have questions about OSHA’s recordkeeping requirements – and the criteria for recordability – regarding COVID-19.

This is especially true when trying to determine whether a case is work-related.

Under the agency’s recordkeeping requirements, COVID-19 is a recordable illness, which means employers are responsible for recording cases of COVID-19 if the case:

1. Is confirmed to be COVID-19.
2. Is work-related, as defined by 1904.5.
3. Involves one or more of the general recording criteria set forth in 1904.7.

First, the case must be a confirmed as COVID-19. This means the employee must test positive using one of the testing methods approved by the Food and Drug Administration.

Next, the case must be work-related, as defined by 1904.5. According to the regulation, “work-related” means that an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in 1904.5(b)(2) specifically applies (see 1904.5).

OSHA defines the work environment as “the establishment and other locations where one or more employees are working or are present as a condition of their employment. The work environment includes not only physical locations, but also the equipment or materials used by the employee during the course of his or her work.”

Lastly, the case involves one or more of the general recording criteria set forth in 1904.7, as follows:

“You must consider an injury or illness to meet the general recording criteria, and therefore to be recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. You must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.”

OSHA has stated that it doesn’t consider COVID-19 a “significant diagnosed injury or illness” under its current definition.

With COVID-19, the most difficult of the three criteria to determine is work-relatedness because COVID-19 is, as the regulation states, “a contagious disease that affects the public at large … and the workplace is one possible source of the infection.” With community spread factored in, it can be difficult for an employer to determine whether the illness was acquired in the workplace. If an employee is infected and hospitalized, or if the infected worker dies, how does one determine if the fatality or hospitalization is work-related? The regulation states:

“In these situations, the employer must examine the employee’s work duties and environment to determine whether it is more likely than not that one or more events or exposures at work caused or contributed to the condition. If the employer determines that it is unlikely that the precipitating event or exposure occurred in the work environment, the employer would not record the case.”

Some basic steps are needed to make this determination.

First, one needs to be aware of the OSHA reporting requirements. If a death is involved, it has to be reported to OSHA within eight hours. If one or more employees are hospitalized, OSHA must be notified within 24 hours. In either case, it’s unlikely the employer would know if it’s work-related. My advice is to report and record it anyway, and let OSHA know what happened and that you’re investigating to determine the work-relatedness of it.

Second, a fatality resulting from a work-related case of COVID-19 is reportable if it occurs within 30 days of the exposure to the virus in the workplace.

OSHA does understand that with COVID-19 the work-relatedness issue can be difficult to determine. The agency would expect an employer to conduct a reasonable assessment and make a “most likely” determination on the issue. This means assess, evaluate and document the steps you took. Don’t make a quick determination without doing an assessment that the case is or isn’t work-related – it’s very unlikely OSHA would accept that.

The agency has provided some guidance. In most cases, to determine work-relatedness, it’ll be sufficient to:

• Ask the employee how they believe they contracted the virus.
• Discuss with the employee their work and out-of-work activities that may have led to the illness.
• Review the employee’s work environment or potential exposure(s), which should be informed by any other instances of workers in that environment contracting COVID-19.

Note: If the evidence considered by the employer at the time of making the work-relationship determination changes, the determination can change.

OSHA states that COVID-19 illnesses “are likely work-related” if:

• Several cases develop among workers who work closely together and “there is no alternative explanation.”
• The illness is contracted shortly after lengthy and close exposure to a particular customer or co-worker who is confirmed to have COVID-19 and “there is no alternative explanation.”
• Job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and “there is no alternative explanation.”

For determining if a case is “not work-related,” OSHA guidance says:

• Only one worker in a general vicinity in the workplace contracts COVID-19.
• Job duties don’t include having frequent contact with the general public, regardless of the rate of community spread.
• Outside the workplace, the infected employee associates closely and frequently with a non-co-worker (family member, significant other or close friend) who has COVID-19.

Additional information for making the work-relatedness determination includes:

• State and local health department data on the COVID-19 incident rate in the community
• Percent of employees vaccinated
• Any previous COVID-19-related cases
• Examine and evaluate the controls that are in place, and determine if they’re being followed
• Employee interviews (Note: Interviews must avoid medical-related questions) One can ask:
  • About the employee’s recent history outside of work: events, parties, shows, concerts they might have attended (can couple this information with the community transmission rate)
  • The employee if they’ve been around anyone confirmed to have COVID-19 or who is unvaccinated
  • About the employee’s vaccination status
  • If the employee’s co-workers are vaccinated

Next, determine whether any incidents or clusters have been identified. Did the employee work around anyone with COVID-19? Then, based on employee history, look at work history and community history, and then make a reasonable conclusion whether the employee illness or death is work-related. Finally, document, document, document.

Some questions to consider

Question: If someone tests positive for COVID-19 but is asymptomatic, is fully able to work and is quarantined (not because they can’t do their job, but to protect others), would this be a recordable lost workday case? The reason I’m asking is, in the past, the focus in determining recordability and days away was on the impact of the injury/illness on the employee’s ability to do their job.
Answer: In this situation, the employee can do the work, but isn’t at work to protect others. OSHA considers the case as a recordable lost-workday case.

Question: What if an employee tests positive, is asymptomatic, is fully able to do all aspects of their job and continues to work from home as scheduled? In short, they experience virtually no impact from their illness. Would this be a recordable case?
Answer: This case isn’t recordable, according to OSHA. Both this case and the one in the previous question do need to be recorded as days-away cases. Although the isolation is precautionary, precautionary doesn’t enter the decision-making process.

From OSHA, some answers to some related question that are frequently asked and may help in determining recordability:

How do I record a work-related injury or illness that results in days away from work?
OSHA: When an injury or illness involves one or more days away from work, you must record the injury or illness on the OSHA 300 log with a check mark in the space for “cases involving days away” and an entry of the number of calendar days away from work in the “number of days” column. If the employee is out for an extended period of time, you must enter an estimate of the days that the employee will be away, and update the day count when the actual number of days is known.

Once an employer has recorded a case involving days away from work, restricted work or medical treatment and the employee has returned to their regular work or has received the course of recommended medical treatment, is it permissible for the employer to delete the log entry based on a physician’s recommendation, made during a year-end review of the log, that the days away from work, work restriction or medical treatment were not necessary?
OSHA: The employer must make an initial decision about the need for days away from work, a work restriction or medical treatment based on the information available, including any recommendation by a physician or other licensed health care professional. Where the employer receives contemporaneous recommendations from two or more physicians or other licensed health care professionals about the need for days away, a work restriction, or medical treatment, the employer may decide which recommendation is the most authoritative and record the case based on that recommendation. Once the days away from work or work restriction have occurred or medical treatment has been given, however, the employer may not delete the log entry because of a physician’s recommendation, based on a year-end review of the log, that the days away, restriction or treatment was. Once the employee has taken time off or received the medical treatment, the case cannot be deleted.

Is a positive COVID-19 test considered an illness?
OSHA: Yes.

Are work-related illnesses considered recordable if only one of the OSHA severity thresholds has been met?
OSHA: Yes.