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OSHA Updates Its Reporting and Recordkeeping Rules for COVID-19

Last month, OSHA published guidance concluding that work-related, confirmed cases of COVID-19 are recordable illnesses. Now, however, recognizing the difficulty of tracing COVID-19 exposure to the workplace, OSHA has updated its guidance to relieve many employers of the duty to record these cases. Subject to some exceptions, OSHA is exercising enforcement discretion and declining to enforce the illness recordkeeping standard with respect to COVID-19 cases.

OSHA’s prior guidance explained that employers are only responsible for recording COVID-19 cases that:

  1. Are confirmed cases of COVID-19; and

  2. Are work-related, as defined under 29 CFR § 1904.5; and

  3. Involve 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).

OSHA’s most recent guidance relates to the second requirement. Under the previous guidance, employers were expected to assess an employee’s work duties and environment to determine whether it was more likely than not that the employee was exposed to COVID-19 while on the job. The agency has now modified this requirement for many employers, recognizing that “transmission is a rapidly evolving issue” and that many might “have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.”

Under the modified guidance, work-relatedness determinations are only required in two contexts. First, OSHA has not altered the illness recording requirements for employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions. Second, all employers must record COVID-19 cases that otherwise meet the reporting requirements if (1) there is “objective evidence” that a COVID-19 case may be work-related (e.g., 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 (e.g., information given to the employer by employees; information learned in the ordinary course of managing its business and employees). In these situations, an employer must still make a work-relatedness determination, which may require an investigation. Further, while silent on the duty to report serious injuries and illnesses, it logically follows that, OSHA’s enforcement discretion will likewise apply to illness reporting obligations. That is, because only work-related illnesses that meet the serious reporting criteria (e.g., inpatient hospitalization) are required to be reported, it would be reasonable to expect OSHA to require COVID-19 reporting if the case satisfies one of the exceptions in the updated guidance.

© 1998-2022 Wiggin and Dana LLPNational Law Review, Volume X, Number 106
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About this Author

Michael L. Miller Real Estate Lawyer Wiggin & Dana Law Firm
Partner

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...

203-498-4438
Michael Rondon Lawyer Wiggin and Dana
Associate

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...

203 498 4373
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