January 25, 2021

Volume XI, Number 25


January 22, 2021

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OSHA Issues Revised Enforcement Guidance for Recording Cases and Inspections of COVID-19

On May 19, the Occupational Safety and Health Administration (OSHA) revised its policy for when employers have to record COVID-19 cases in their injury and illness logs.

Under the revised policy, employers who are otherwise required to keep OSHA logs must make a determination as to whether workers’ COVID-19 cases are job-related. Previously, OSHA took the position that only healthcare employers, corrections facilities, and emergency-response providers were required to make that determination.

OSHA expects employers to perform an investigation into the determination of work-relatedness of COVID-19 cases, while acknowledging that the nature of the disease and the extent of its spread will make such determination difficult. OSHA will look to:

  • The reasonableness of the employer’s investigation into work-relatedness: The employer should ask how the employee believes he or she contracted the virus; while respecting privacy, the employer should discuss activities that may have led to the employee contracting the virus, and the employer should review the work environment for potential exposure.

  • The evidence available to the employer that COVID-19 was contracted at work: OSHA will consider whether the employer made a proper determination of work-relatedness based on the information reasonably available to the employer. While there is no simple formula to determine work-relatedness, certain types of evidence may weigh in favor of or against work-relatedness.

Likely work-related

  • Several cases develop among workers who work closely together, and there is no alternative explanation.

  • An employee contracts COVID-19 shortly after lengthy, close exposure to a customer or co-worker who has a confirmed case of COVID-19, and there is no alternative explanation.

  • An employee’s duties include frequent, close exposure to the general public in an area with ongoing community transmission, and there is no alternative explanation.

Likely not work-related

  • An employee is the only worker with COVID-19 and does not have frequent contact with the general public, regardless of the rate of community spread.

  • An employee closely associates with someone outside the workplace who has COVID-19.

OSHA will give weight to any evidence of work-relatedness presented by medical providers, public health authorities, and the employee himself or herself.

If the employer conducts a reasonable and good faith inquiry as described above and cannot determine whether it is more likely than not that the exposure was work-related, the employer does not have to record the illness in its log. 

However, OSHA emphasizes that it is most important that the employer investigate COVID-19 cases among employees and respond appropriately to protect workers, regardless of whether cases are considered work-related.

OSHA also issued updated enforcement guidance for inspections related to COVID-19 complaints, referrals and severe illness reports.

In response to the reopening of many parts of the country, OSHA plans to operate within the following framework:

  • In areas where community spread of COVID-19 has significantly decreased, OSHA will return to its regular inspection policy except that it will:

    • Continue to prioritize COVID-19 cases; and

    • Use phone investigations or Rapid Response Investigations (RRIs) where OSHA may have previously performed onsite investigations.

  • In areas where community spread is elevated or there is a resurgence, OSHA will:

    • Continue to prioritize COVID-19 fatalities and imminent danger exposures for inspection.  On-site inspections will be focused on hospitals and other health care providers and workplaces with high numbers of complaints or known COVID-19 cases; and

    • Use phone investigations instead of on-site inspections when they can adequately address the hazards.

OSHA also emphasizes that this guidance is intended to be time-limited to the current COVID-19 public health crisis and encourages employers to frequently check OSHA’s webpage for updates.

© 2020 Jones Walker LLPNational Law Review, Volume X, Number 141



About this Author

Jane H. Heidingsfelder, Jones Walker, MSHA Employer Representation Lawyer, Injury Reporting Policy Attorney

Jane Heidingsfelder is a partner in the firm's Labor & Employment Practice Group in the New Orleans office. She has extensive experience representing clients in a wide array of industries before the Occupational Safety & Health Administration ("OSHA") and Mine Safety & Health Administration ("MSHA"). In particular, she is frequently asked to assist companies during on-site safety and health investigations, as well as in subsequent litigation with the Department of Labor. 

Ms. Heidingsfelder has defended clients in state and federal...