We are all adjusting to a new normal for the next few weeks and the impact on COVID-19 is significant on employers, this includes ensuring employees who may be at risk are kept safe and healthy by implementing necessary OSHA requirements. A few weeks ago, OSHA issued general guidance on COVID-19 for employers. In doing so, there was a very general statement about tracking COVID-19 cases and recording them in compliance with OSHA’s recordkeeping standards. The lack of specificty set off new questions by employers, which OSHA has now tried to clarify on its website.
Generally, we have seen some confusion between something that is recordable versus reportable for OSHA purposes. Below are some questions and answers that hopefully address employer concerns about recordkeeping and reporting to OSHA COVID-19 employee illnesses.
Is an employee confirmed with COVID-19 recordable on the OSHA 300 Log?
Work-related injuries or illness are recordable under certain circumstances. But it should be noted, that not all employers are required to maintain work-related injuries and illness records. Some employers are exempt based on their North American Industry Classification System (NAICS) codes. For example, banks are exempt under NAICS 5221 – Depository Credit Intermediation. This classification includes for example commercial banking, 52211 and credit unions 52213.
But assuming the establishment is not exempt and is required to maintain work-related injury and illness records, if an employer has a confirmed COVID-19 case of an employee where the work environment was likely the cause or contributing factor of the illness then the COVID-19 case might be recordable if the one of the following occur:
- 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 (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. 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 CDC 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; and
- 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, days away from work).
If the case is recordable, can it be considered a privacy case and kept on a separate log?
So technically no, a privacy case is defined very specifically in the regulations and a COVID-19 case does not meet that definition, however, if it is recorded on a separate log there is likely no harm here and there are strong reasons to argue these should be considered privacy cases and employee names not be placed on the log. However, absent specific guidance from OSHA on this, the case does not meet the definition of a privacy case under OSHA’s requirements and employers who treat such cases as privacy cases should be aware of potential laibility. The exception would be if any employee voluntarily requests that his or her name not be entered on the OSHA 300 Log.
Does workers compensation related to COVID-19 have any impact on recording a case?
Whether a workers compensation claim is filed or not has no bearing and whether the claim is paid or denied has no bearing on whether a COVID-19 case is recordable either.
Is an employee confirmed with COVD-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 in-patient (out patient hospitalizations are not reportable to OSHA) as a result of COVID-19 contracted from performing work-related duties. The normal criteria for reporting serve injuries applies even to COVID-19 cases. Employers must report any worker fatality within 8 hours and any amputation, loss of an eye, or hospitalization of a worker within 24 hours. It should be noted that even employers who are exempt from recordkeeping must report a severe injury if it meets this criteria.
Jackson Lewis has a team of dedicated attorneys to address employer concerns and questions relating to COVID-19. Additional information can be found on our dedicated webpage.