OSHA Recordkeeping: Are Workplace COVID-19 Cases Recordable?

The global COVID-19 pandemic is causing massive disruptions to businesses, with many scaling back or closing their operations entirely. Many others, including healthcare establishments, face even greater demand for their goods and services during these dangerous and uncertain times. Risks of exposure to the SARS CoV-2 virus and COVID-19 are everywhere, even our workplaces, and an added concern for US businesses is whether COVID-19 cases count as recordable illnesses under OSHA’s Recordkeeping Standard.

Here, we’ll take a look at what OSHA’s Recordkeeping Standard says about determining recordability of contagious diseases, discuss recent statements from OSHA regarding applicability to COVID-19, address some of the remaining uncertainty around this issue, and give you some practical guidance to help maintain compliance with recordkeeping requirements.

Background

OSHA’s Recordkeeping Standard states that some cases of infectious diseases may be classified as work-related illnesses, requiring employers to record them on OSHA 300 and 301 injury and illness recordkeeping forms.

29 CFR 1904.5(a) defines an injury or illness as work-related when an event or exposure in the workplace either causes or contributes to the resulting condition, or causes significant aggravation of a pre-existing injury or illness. 1904.5(b)(2)(viii) further elaborates that “contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work.” The only types of illnesses an employer may exclude from recording by default are the common cold and the seasonal flu.

Of course, confusion about whether the exposure occurred in the workplace or outside of it tends to complicate things. OSHA’s Recordkeeping Standard itself addresses this confusion in 1904.5(b)(3), stating: “In these situations, you must evaluate the employee's work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.”

Over the years, OSHA has issued letters of interpretation (LOIs) and other guidance documents to further clarify their expectations of employers when determining if an injury or illness is work-related. In a 2016 LOI, a correspondent asked OSHA how they should handle a case if it is not obvious whether the precipitating event or exposure occurred in the work environment. OSHA responded that “the employer is to evaluate the employee's work duties and environment and decide whether it is more likely than not that work events or exposures were a cause of the injury or illness,” adding that “the employer has the ultimate responsibility for making good-faith recordkeeping determinations” and “their decision must not be an arbitrary one.”

That’s still not a definitive answer, because real-life situations rarely make it easy to determine work-relatedness, especially in the case of illnesses. It’s always going to depend on the specifics of the case. Where there is ambiguity, the employer would basically need to make the best determination possible and be ready to defend their determination if asked by an enforcement officer.

OSHA has provided additional guidance on recordkeeping determinations in cases of contagious diseases. For example, an OSHA FAQ addresses the question of how an employer should handle a case of an employee who tests positive for anthrax and received a prescription of antibiotics. OSHA answers that if the employer determines that the exposure or incident that caused the anthrax to develop was work-related, they would need to record the illness because the administration of antibiotics is considered medical treatment beyond first aid, which is one of the general recording criteria in the Recordkeeping Standard.

The total number of recordable illnesses would also need to be entered on their Summary of Work-Related Injuries and Illnesses (Form 300A), which employers are required to complete, sign and post from February 1 through April 30 of each year, for the preceding calendar year. Employers at establishments covered by electronic reporting requirements would need to submit that same information to OSHA via the Injury Tracking Application (ITA) by March 2 of each year.

OSHA Guidance on COVID-19

As you can imagine, there’s been confusion whether employers need to record workplace COVID-19 cases. Keep in mind that OSHA exempts employers from recordkeeping requirements for cases of the common cold and the seasonal flu, even when exposure is work-related. Employers who know that cases of common cold and seasonal flu are not recordable may also assume that cases of COVID-19 are not recordable either. However, the Recordkeeping Standard clearly states that cases of contagious diseases other than the seasonal flu and common cold are potentially recordable, meaning that COVID-19 illnesses must be recorded if exposures are work-related, and meet other recordable criteria.

On its COVID-19 resource page, OSHA affirms that COVID-19 illnesses can be recordable if workers become infected while performing work-related duties. An employer would only be responsible for recording a COVID-19 case if all of the following criteria are met:

  1. 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);
  2. The case is work-related, as defined by 29 CFR 1904.5; and
  3. 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).

Using this guidance in combination with the Recordkeeping Standard and previous OSHA guidance, we can safely say that an employer would need to make their best determination as to whether exposure to the SARS CoV-2 virus that causes the COVID-19 illness happened in the workplace. They’d need to do that by reviewing available evidence, including job tasks and related exposures within the workplace. Certain jobs, such as those in healthcare that would likely place workers into direct contact with people who have COVID-19, would have a greater chance of resulting in recordable illnesses based on this logic.

OSHA Reporting and Other Complications

Here’s the new challenge: the very nature of a pandemic makes it more difficult to determine whether an exposure inside or outside the workplace caused the illness, because exposures are much more common. As the incidence of new COVID-19 cases approaches its peak, it becomes harder and harder to make the call.

This complicates not only recordability determinations, but also an employer’s reporting obligations under the Recordkeeping Standard. Recall that there are circumstances in which the Standard requires employers to report a workplace injury or illness directly to OSHA:

  • Work-related fatalities must be reported within 8 hours
  • In-patient hospitalizations must be reported within 24 hours
  • Workplace incidents involving amputations or loss of eye must be reported within 24 hours

An employer can report these incidents by calling their local OSHA office, by using a toll-free number, or by reporting online, per instructions here. But that’s assuming they know they have something to report in the first place.

Consider the first two reporting criteria above. COVID-19 cases often are serious enough to result in hospitalization, and in a small percentage of cases also result in fatality. Based on the Recordkeeping Standard, an employer would need to report an in-patient hospitalization of an employee to OSHA within 24 hours, and would need to report the death of an employee from a workplace COVID-19 exposure within 8 hours. But difficulty about determining if a COVID-19 case resulted from exposures inside or outside of the workplace affects their ability to comply with this requirement, because everything starts with determining whether the initial exposure was work-related.

There’s also the issue of how recording large numbers of workplace COVID-19 cases will affect an employer’s recordable incident rate (RIR). As the total number of COVID-19 cases continues to climb, so will the number of exposures in workplaces that remain open. Recording all cases that result from workplace exposures could massively inflate an employer’s RIR.

What Should I Do?

It would not be surprising if OSHA further clarifies its expectations for recordkeeping and reporting of COVID-19 cases. Be sure to check OSHA’s COVID-19 page for updates. Until then, the confusion remains, but there are still some things you can do today.

Make sure you and your team understand the recordkeeping requirements regarding COVID-19 and contagious diseases generally, and that cases of COVID-19 are not the same as cases of the common cold or seasonal flu. Then, make your best good-faith effort to determine if employees with COVID-19 contracted their illness from workplace exposures, and if other recording criteria were met.

Also, make sure your existing recordkeeping system is as complete and well-organized as possible. All things being equal, an OSHA inspector would likely judge an employer who demonstrated good recordkeeping compliance less harshly than they would judge someone who had obvious gaps in their system long before the current pandemic. Consider the benefits of modern cloud-based incident management software for centralizing your records and eliminating gaps in your injury and illness recordkeeping.

If you’re looking for more information on navigating the nuances of OSHA’s Recordkeeping Standard, check out our upcoming webinar.

Let VelocityEHS Help

We’re always happy to discuss how our Incident Management software can help you meet your requirements under the Recordkeeping Standard, including ability to quickly generate and submit electronic 300A data. Contact us anytime to learn more.

Until next time, take care.