Last Friday, the Occupational Safety and Health Administration issued interim guidance advising employers under which circumstances they must consider employee COVID-19 diagnoses as recordable workplace illnesses. In general, the guidance divides employers into two categories. For health care workers, first responders, and correctional institutions, employers must continue to make the workplace-relatedness determination called for under OSHA’s recordable injury and illness rules.
For other employers in areas experiencing community spread of COVID-19, OSHA states that it will be difficult to determine whether an employee’s infection occurred in the workplace. In those circumstances, employers only need to record the illness if there is clear evidence of its connection to work, such as a cluster of infections among employees working in the same area. Another example would involve situations where an employee provides the employer with information reasonably indicating an infection arising from a workplace contact.
This guidance appears to provide employers with justification for not recording employee COVID-19 cases absent objective evidence of workplace transmission. OSHA did remind employers of their obligation with any infectious disease to allow the employee to omit his or her name from the OSHA 300 log.
On Monday, the agency followed up with release of an interim enforcement response plan that provides guidance to OSHA inspectors with regard to COVID-19 related complaints and inspections. The plan prioritizes enforcement responses based on workplace connected fatalities and hospitalizations. OSHA offices have the flexibility to prioritize inspection of high-risk work environments, such as health care facilities, nursing homes, and settings where COVID-19 exposure and transmission are more likely to occur.