April 13, 2021

Volume XI, Number 103

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April 13, 2021

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April 12, 2021

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Is an Employee’s COVID-19 Case Work-Related and Recordable? OSHA Provides Employers Clarity Through Enforcement Guidance

Since the beginning of the Coronavirus Disease 2019 (COVID-19) pandemic, employers have wrestled with whether they are required to record employee COVID-19 cases on their Occupational Safety and Health Act (the Act) Injury and Illness logs, called Forms 300, 300A, and 301. Initially, the Occupational Safety and Health Administration (OSHA) explained that a COVID-19 case is a recordable illness if (1) an employee is positive or presumptively positive for COVID-19; (2) the case is work-related; and (3) the case results in medical treatment beyond first aid or days away from work. OSHA’s position seemed straightforward until COVID-19 cases became prevalent, creating uncertainty for some employers as to whether employee COVID-19 cases were work-related under the Act’s regulations. If a case is work-related, the Act requires employers to record it on their Injury and Illness logs; if it is not work-related, then the employer is not obligated to record it.

On April 10, 2020, OSHA issued an enforcement guidance memorandum for recording cases of COVID-19 (Memorandum). The purpose of the Memorandum is to clarify for employers when COVID-19 cases are work-related and thus reportable on an employer’s Injury and Illness log. Pursuant to the Memorandum, and until further notice, for purposes of employers’ recordkeeping obligations, OSHA will not enforce the requirement that employers make work-relatedness determinations regarding employees who contract COVID-19, except where:

  1. There is objective evidence that a COVID-19 case may be work-related. Such objective evidence could be a number of cases developing among workers who work closely together without an alternative explanation; and

  2. The evidence was reasonably available to the employer. The Memorandum explains that reasonable available evidence includes information given to the employer by employees or information that the employer learns regarding employee health and safety during the ordinary course of managing its business and employees.

Note: The Memorandum does not apply to employers in the health care industry, emergency response organizations, or correctional institutions. Employers in these industries must continue to make work-relatedness determinations pursuant to the Act’s recordkeeping requirements for purposes of deciding whether it must record an employee’s COVID-19 case on its Injury and Illness log.

According to the Memorandum, OSHA’s guidance will allow employers to focus their response efforts on implementing “good hygiene practices” and mitigating COVID-19’s effects, rather than on “making difficult work-relatedness decisions in circumstances where there is community transmission.” The Memorandum remains in effect until further notice.

The Memorandum provides clarity to employers in determining whether an employee contracted COVID-19 at work, while performing their work duties, or through other means. Employers, especially those considered “essential businesses” under governors’ Executive Orders and those with large facilities or worksites, should be mindful of the exceptions in the Memorandum.

Employers who over-record instances of employee work-related COVID-19 illnesses may find themselves in OSHA’s Site-Specific Targeting Program, which may lead to an OSHA inspection down the road. Likewise, employers who under-record instances of work-related COVID-19 illnesses could be exposed to multiple serious or willful citations for each COVID-19 illness that was not recorded. Employers should consult with experienced counsel on reporting. 

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©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 105
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About this Author

Michael Taylor, Greenberg Traurig Law Firm, Northern Virginia, Labor and Employment, Energy Law Attorney
Shareholder

Michael T. Taylor is Chair of the firm's Labor & Employment Practice's OSHA group. He focuses his practice on the representation of employers in a variety of industries regarding Occupational Safety and Health Administration (OSHA) matters across the country. Over the last fourteen years, Michael has defended scores of employers during enforcement litigation, many of which have involved a significant injury, fatality, or catastrophic event in the workplace. Michael also provides OSHA compliance counseling, OSHA inspection counseling, OSHA whistleblower representation, and OSHA due...

703-749-1387
Michael G. Murphy, Greenberg Traurig Law Firm, Orlando, Labor and Employment, Real Estate and Construction Law Attorney
Shareholder

Michael Murphy is a board certified construction lawyer who focuses his practice on defects, design claims, delay, disruption and acceleration claims, lien foreclosures, and arbitration on behalf of owners, developers, contractors and subcontractors. He reviews and draft construction contacts. He advises clients in the construction industry on OSHA compliance issues, workplace accident and fatality investigations, and contest of citations through trial. He also practices in the area of commercial litigation.

Michael has a Bachelor of Science in...

407-999-2509
Adam Roseman, Greenberg Traurig Law Firm, Philadelphia, Labor and Employment Attorney
Associate

Adam Roseman focuses his practice on federal and state labor and employment counseling and litigation arising under Title VII, the Fair Labor Standards Act, whistleblower retaliation under Sarbanes-Oxley and Dodd-Frank, the Occupational Safety and Health Act, and restrictive covenants.

Concentrations

  • FLSA

  • Title VII

  • Occupational Safety and Health Act

  • Whistleblower retaliation under Sarbanes-Oxley and...

215-988-7826
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