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COVID-19 and OSHA Reporting and Recordkeeping

As the number of COVID-19 cases continues to grow across the U.S., employers should consider Occupational Safety and Health Administration (“OSHA”) injury and illness recording and reporting obligations in connection with confirmed employee cases of COVID-19. Generally, OSHA requires covered employers to prepare and maintain records of work-related injuries and illnesses. See 29 CFR § 1904. OSHA recently published a guidance concluding that COVID-19 can be a recordable illness, if the employee’s exposure to COVID-19 was work-related and otherwise satisfies OSHA’s recording requirements.

In addition to OSHA recording obligations, employers must also report severe, work-related injuries and illnesses.  In January 2015, OSHA revised its recordkeeping rules to expand the list of severe injuries and illnesses that employers must report to include work-related:

  • Fatalities,
  • In-patient hospitalization,
  • Amputation, and
  • Loss of an eye.

In general, OSHA requires employers to record employee illnesses that are (1) work-related, (2) new, and (3) meet OSHA’s recording criteria (described below). OSHA recently issued guidance explaining how this requirement applies to COVID-19.  Employers are only responsible for recording cases of COVID-19 if the case is:

  1. A confirmed case of COVID-19; and
  2. Work-related, as defined under 29 CFR § 1904.5; and
  3. 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).

We discuss each of these conditions in further detail below.

“Confirmed Case” – Notably, OSHA does not consider “the common cold or flu” to be work-related. The regulations limit this exception, though, specifying that “contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work.”  29 CFR § 1904.5(b)(2). OSHA’s recent guidance indicates that COVID-19 should be treated as one of these “contagious diseases,” and is therefore reportable if the employee was infected at work and the other criteria are satisfied. Further, OSHA excludes suspected, but unconfirmed, COVID-19 cases, citing Center for Disease Control guidance. Employers are expected to determine whether it is more likely than not that one or more events or exposures at work caused or contributed to the confirmed COVID-19 case and, if yes, the illness is work-related. 

“Work-Related” – Employers must consider an illness to be work-related if “exposure in the work environment” caused the illness, “unless an exception . . . specifically applies.”  29 CFR § 1904.5(a). Whether such a causal connection exists is left to the employer to decide.

  • Unclear Source of Exposure – If it is not obvious whether the exposure occurred in the work environment, the employer must evaluate the employee’s work duties and environment to decide.  29 CFR § 1904.5(b)(3). 
  • Work Environment: At Home – A work environment is any location where an employee is working as a condition of employment, which can include an employee’s home.  But, to be recordable, injuries or illnesses sustained from working at home must be “directly related to the performance of work rather than to the general home environment or setting.”  29 CFR § 1904.5(b)(7).  By way of example, OSHA has clarified that “if an employee drops a box of work documents and injures his or her foot, the case is considered work-related. . . . If an employee working at home is electrocuted because of faulty home wiring, the injury is not considered work-related.” In other words, illness caused by exposure to COVID-19 that occurs within an employee’s home does not appear to be subject to the recording requirement, unless the exposure was “directly related” to the employee’s work. 

General Recording Requirements – An employer must consider a work-related illness to meet the general recording criteria, and therefore to be recordable, if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. 29 CFR § 1904.7(a).  Because some COVID-19 cases might not result in “medical treatment,” not every COVID-19 case is necessarily recordable.

OSHA’s guidance clarifies that a covered employer must record or report certain cases of COVID-19 that arise from at-work exposure.  But there is considerable room for variance and discretion, and employers will benefit from a thoughtful and consistent approach to these very fact-specific issues.  For example, only a case confirmed by testing must be recorded or reported, but an employer only must record or report a confirmed case if it is more likely than not that the exposure was work-related.  And even if a confirmed case is work-related, recording or reporting might not be required if the employee does not receive medical treatment. 

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Michael L. Miller Real Estate Lawyer Wiggin & Dana Law Firm
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Mike is a Partner in Wiggin and Dana’s Real Estate, Environmental and Energy Department in the New Haven office. An experienced environmental, health and safety (EHS) attorney, Mike’s practice is largely comprised of three distinct categories of EHS legal representation: transactional support; compliance and risk counseling; and litigation.

Mike has over thirteen years of EHS compliance and risk management experience. His passion for client service, substantive and technical knowledge and geographic breadth of experience (having worked on matters in over 20 states) contribute to his...

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Michael Rondon Lawyer Wiggin and Dana
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Michael Rondon is an Associate in Wiggin and Dana’s New Haven office.

Before joining Wiggin and Dana, Michael worked for the Connecticut Supreme Court in Hartford, Connecticut as a law clerk for Justice Gregory D’Auria. Prior to this, he was a summer associate for Wiggin and Dana in the firm’s New Haven office. From 2017 to 2018, Michael also worked as law clerk for the firm of Horton, Dowd, Bartschi & Levesque. In 2016, he worked as judicial intern for Judge Michael P. Shea for the U.S. District Court for the District of Connecticut.

Michael received his J.D. with highest honors from the University of Connecticut School of Law, where he was Managing Editor of the Connecticut Law Review. He also received eight CALI Awards for academic excellence, the Edward L. Stephenson Memorial Award for civil procedure, the William F. Starr Fellowship Award for overall scholarship, and won the Alva P. Loiselle Moot Court competition.

Prior to his legal career, Michael received his M.S. from the Quinnipiac University School of Journalism and spent five years as a reporter for several publications, including The Hartford Courant in Connecticut. He received his B.A. in Literary Studies from Trinity College.

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Heather Sellew litigation lawyer Wiggin and Dana
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Heather is an Associate in Wiggin and Dana’s Litigation Department, where she focuses her practice in the International Trade Compliance and Sanctions Practice Group. Heather represents companies in corporate compliance and regulatory enforcement matters, with an emphasis on U.S. export controls – the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR) – and U.S. trade sanctions administered by the Office of Foreign Assets Control (OFAC).

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