OSHA Updates Enforcement Guidance for Employer Reporting of COVID-19 Cases

May 20, 2020

On May 19, 2020, the Occupational Safety and Health Administration (OSHA) issued Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19).  The guidance is directed to Compliance Safety and Health Officers (CSHOs) regarding the enforcement of an employer’s duty to properly record instances of occupational illnesses involving COVID-19 and goes into effect on May 26, 2020.  The reporting requirement applies to employers with 10 or more employees.

The guidance states that confirmed cases of COVID-19 that are work-related must be reported.  However, OSHA recognizes that it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.  According to the guidance, CSHOs should consider the following factors when making an enforcement determination:

  • The reasonableness of the employer’s investigation into work-relatedness, taking into consideration the size of the employer.
  • The evidence available to the employer as of the time the employer made the work-relatedness determination.
  • The evidence that a COVID-19 illness was contracted at work, such as whether several cases developed among workers who work closely together or had lengthy, close exposure to a coworker who has a confirmed case of COVID-19.

The guidance states that recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.  It also notes that if after a good faith inquiry the employer concludes the workplace did not cause a particular case of COVID-19, the employer has no duty to report.  OSHA’s COVID-19 website provides additional guidance regarding COVID-19 and the workplace.