What a difference a pandemic makes. Every day there are new rules and
challenges keeping safety and risk management professionals on a high alert.
The COVID-19 crisis is far from predictable.
One question plaguing risk and safety professionals is whether or not an
employee with a confirmed case of COVID-19 is Occupational Safety and Health
Administration (OSHA) recordable. Like everything about this pandemic, the
answer to that seemingly simple question is fluid.
Back in early March 2020, OSHA issued general guidance on COVID-19 for
employers. The guidance contained a very general statement about tracking
COVID-19 cases and recording them in compliance with OSHA's record-keeping
standards. This one seemingly benign statement sent employers into a flurry of
questions. OSHA has recently attempted to provide clarification by posing
guidance questions and answers.
COVID-19: Recordable on the OSHA 300 Log
Is an employee confirmed with COVID-19 recordable on the OSHA 300 Log?
Work-related injuries or illnesses are recordable under certain circumstances.
But it should be noted that not all employers are required to maintain records
of work-related injuries and illness. Some employers are exempt based on their North American
Industry Classification System (NAICS) codes. Assuming the organization is
required to maintain work-related injury and illness records, if there is an
employee with a confirmed case of COVID-19 where the work environment was
likely the cause or contributing factor of the illness, then the COVID-19 case
may be recordable if one of the following occurs.
- Medical treatment (beyond first aid) is provided, such as prescription medication
is issued.
- Restricted duty is imposed by the treating physician or the
employer.
- Days away from work (lost time) is imposed by the treating physician (the
employee is kept from work and cannot work at home due to the virus).
Given what we know about the virus currently, it is more likely that medical
treatment or days away (lost time) will occur with COVID-19.
Here is what OSHA has specifically said on the recording of a confirmed COVID-19 case.
COVID-19 can be a recordable illness if a worker is infected as a result of
performing their work-related duties. Due to the contagious nature of the
virus, it will be very difficult to determine where a person was
infected. However, employers are only responsible for recording cases of
COVID-19 if all of the following are met.
- The case is a confirmed case of COVID-19 (see Centers for Disease Control and
Prevention information on persons under investigation and presumptive
positive and laboratory-confirmed cases of COVID-19).
- The case is work-related as defined by 29 CFR 1904.5.
- The case involves one or more of the general recording criteria set forth
in 29 CFR 1904.7 (e.g.,
medical treatment beyond first aid or days away from work).
COVID-19: Reportable to OSHA
Is an employee confirmed with COVID-19 reportable to OSHA? The only way a
COVID-19 case would be reportable to OSHA would be if the employee
passes away or is hospitalized as an inpatient (outpatient hospitalizations are
not reportable to OSHA) as a result of COVID-19 contracted from performing
work-related duties. The normal criteria for reporting severe injuries applies
even to COVID-19 cases. Employers must report any worker fatality within 8
hours of the incident. They must also report any amputation, loss of an eye, or
hospitalization of a worker within 24 hours. Exempt employers must report a
severe injury if it meets this criterion as well.
COVID-19: Compensable under Workers Compensation/OSHA Recordable
If the case is covered and deemed compensable under workers compensation, is
it OSHA recordable? OSHA recordable and compensability under a workers
compensation claim are two separate issues and have no bearing on each other.
If an employee files a claim for workers compensation for a COVID-19-related
illness, it should have no bearing whatsoever on whether it is deemed OSHA
recordable by the employer.
OSHA Enforcement
In areas where there is ongoing community transmission, employers other than
those in the healthcare industry, emergency response organizations (e.g.,
emergency medical, firefighting, and law enforcement services), and
correctional institutions may have difficulty making determinations about
whether workers who contracted COVID-19 did so due to exposures at work. Until
further notice, according to the directive by Deputy Assistant Secretary
Amanda Edens, OSHA will not enforce its record-keeping requirements to
require these employers to make work-related determinations for COVID-19 cases,
except where the following occurs.
- There is objective evidence that a COVID-19 case may be
work-related.
- The evidence was reasonably available to the employer. Employers of
workers in the healthcare industry, emergency response organizations, and
correctional institutions must continue to make work-relatedness
determinations pursuant to 29 CFR Part 1904.
OSHA's enforcement policy will provide certainty to the regulated
community and help employers focus their response efforts on implementing good
hygiene practices in their workplaces and otherwise mitigating COVID-19's
effects.
OSHA recently issued 10 best practices for employees to follow to prevent the spread of
COVID-19. This document should be displayed at all workplaces and reviewed with
all employees.