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COVID-19 Recordability: Most employers get a pass

Federal OSHA will relax enforcement on determining work-relatedness for cases of COVID-19 for non-healthcare industry employers.

Posted April 14, 2020

OSHA issued interim guidance for enforcing OSHA’s 1904 workplace injury and illness recordkeeping as it relates to COVID-19.

OSHA says a case of COVID-19 is a recordable illness if it meets the following criteria:

  1. It is confirmed as a COVID-19 illness;
  2. It is work-related (as defined by OSHA at 29 CFR 1904.5); and
  3. It involves one or more of the general recording criteria listed in 1904.7, such as days away from work or medical treatment beyond first aid.

OSHA’s definition of work-relatedness at 1904.5(a) says, “You must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness.” Nine specific exemptions to work-relatedness apply, including an exception for cases of the common cold or flu contracted in the workplace. However, cases of COVID-19 are not eligible for that exception.

Employers in non-healthcare industries have told OSHA that they have been having difficulty determining whether cases of COVID-19 were contracted due to exposures in the workplace, and are therefore work-related. In response, OSHA now says it will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases except where:

  1. There is objective evidence that a COVID-19 case may be work-related; and
  2. 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 according to the requirements of section 1904.5.

According to OSHA, this enforcement policy will provide certainty to the regulated community and help employers focus their attention on implementing good hygiene practices in their workplaces and otherwise mitigating COVID-19’s effects.

This article was written by Rachel Krubsack of J. J. Keller & Associates, Inc.

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