Labor & Employment Law Daily Enforcement eased on COVID-19 work-relatedness OSHA 300 reporting
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Wednesday, April 15, 2020

Enforcement eased on COVID-19 work-relatedness OSHA 300 reporting

By Pamela Wolf, J.D.

The modification of reporting requirements applies where there is ongoing community transmission, with certain exceptions, but excludes healthcare, emergency response, and correctional workers.

OSHA has issued interim guidance for enforcing OSHA’s recordkeeping requirements as they pertain to COVID-19 cases. The April 10, 2020 memorandum, which took effect immediately and remains in effect until further notice, is intended to be time-limited to the current public health crisis.

COVID-19 is a respiratory illness and should be coded as such on the OSHA Form 300, the memo notes. Also, because this is an illness, if an employee voluntarily requests that their name not be entered on the log, the employer must comply as specified under 29 CFR § 1904.29(b)(7)(vi).

Recordable illness. Employers are responsible for recording cases of COVID-19, if the case:

  • Is confirmed as a COVID-19 illness;
  • Is work-related as defined by 29 CFR 1904.5; and
  • Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

Ongoing community transmission. The memorandum notes that 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 determining whether workers who contracted COVID-19 did so due to exposures at work.

Work-relatedness determinations. In light of those difficulties, OSHA is exercising its enforcement discretion. Until further notice, OSHA will not enforce 29 CFR § 1904 to require these employer to make the same work-relatedness determinations, except where:

  • There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
  • The evidence was reasonably available to the employer. Examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.

Still required in some industries. However, employers of workers in the healthcare industry, emergency response organizations, and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904, according to the memo.

Keeping the focus on mitigation. The enforcement policy is expected to help employers focus their response efforts on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.

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