OSHA Changes Enforcement Policy: COVID-19 Now Subject to More Searching “Work-Relatedness” Inquiry

May 26, 2020

Effective today, OSHA is rescinding its prior COVID-19-related enforcement memorandum, and replacing it with a new one: “Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19).” Under the prior memorandum, issued April 10, 2020, employers generally did not need to record employee COVID-19 cases, unless the employer was in one of three areas: healthcare, emergency response, and correctional institutions. For all other employers, COVID-19 was presumptively not “work-related”— and thus not recordable. That presumption could be overcome by objective evidence, reasonably available to the employer. 

The new enforcement memo expressly rescinds that prior memo. Under the new memo, OSHA generally “will enforce the recordkeeping requirements of 29 CFR 1904 for employee COVID-19 illnesses for all employers according to the guidelines below.” (Emphasis added.) The only partial exceptions are “employers with 10 or fewer employees and certain employers in low hazard industries.” They “have no recording obligations; they need only report work-related COVID-19 illnesses that result in a fatality or an employee's in-patient hospitalization, amputation, or loss of an eye.” For all other employers, Compliance Safety and Health Officers (“CSHOs”) should apply three factors when assessing whether COVID-19 is work-related:

  1. The reasonableness of the employer’s investigation into work-relatedness;
  2. The evidence available to the employer; and
  3. The evidence that a COVID-19 illness was contracted at work.

This new guidance provides details as to what OSHA means by all three factors. In particular, that includes substantial guidance as to the third factor. OSHA emphasizes that whether COVID-19 was contracted at work “cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness,” some of which OSHA specifies.

As some comfort to employers, OSHA emphasizes: “Recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.” Moreover, “the employer does not need to record that COVID-19 illness” “[i]f, after the reasonable and good faith inquiry described above [in the three factors], the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19.”

Lastly, relevant to maintaining employee confidentiality: “Because [COVID-19] is an illness, if an employee voluntarily requests that his or her name not be entered on the log, the employer must comply as specified under 29 CFR § 1904.29(b)(7)(vi).” CSHOs should also “generally refer to CPL 02-00-135, Recordkeeping Policies and Procedures Manual (Dec. 30, 2004), and CPL 02-00-163, Field Operations Manual (Sept. 13, 2019), Chapters 3 and 6, as applicable.” (Footnotes omitted.)

If you have further questions, Arthur Chapman’s COVID-19 Task Force is ready to advise.