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OSHA Workplace COVID-19 Case Recording and Reporting

On May 19, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued revised Enforcement Guidance for recording cases of COVID-19, which is a recordable illness under OSHA’s recordkeeping requirements. 

Beginning May 26, 2020, employers are required to record cases of COVID-19, if the following three circumstances are present:

  • The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention.

  • The case is work-related as defined by 29 C.F.R. § 1904.5. An injury or illness is considered to be work-related if an event or exposure in the workplace either caused or contributed to the condition or significantly aggravated a preexisting injury or illness. Generally, work-relatedness is presumed for such injuries unless one of the nine exceptions listed in 29 C.F.R. § 1904.5(b)(2) specifically applies. In recognition of the difficulty of determining work-relatedness, OSHA is exercising enforcement discretion in determining work-relatedness in the context of employee COVID-19 illness.

  • The case involves one or more of the general recording criteria set forth in 29 C.F.R. § 1904.7. Under section 1904.7, injury or illness is considered to meet the general recording criteria, and is therefore recordable, if the injury or illness results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid or loss of consciousness. Significant injuries or illnesses diagnosed by a physician or other licensed health care professional also are considered to meet the general recording criteria and are recordable, even if the significant injury or illness does not result in one of the listed conditions. 

The guidance reiterates that the recording of a COVID-19 case does not in and of itself mean that an employer has violated an OSHA standard. Additionally, employers with 10 or fewer employees and employers in certain low-hazard industries need only report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, an amputation or the loss of an eye. 

Whether or not a COVID-19 case is work-related or reportable, employers should continue their efforts to minimize the risk of transmission of the disease in the workplace through proper hygiene, social distancing and personal protective equipment.

© 2020 Wilson Elser


About this Author

Gregg S. Kahn Employment & Labor Attorney Wilson Elser New Jersey

Gregg Kahn focuses his practice on labor and employment litigation, representing employers of all sizes. Gregg also devotes a substantial portion of his time to professional liability defense and real estate litigation. In his various roles over the course of his career, Gregg has counseled clients, handled complex litigation and coordinated litigation services on a nationwide basis.

Gregg has successfully defended numerous property managers and real estate brokers before HUD and the New Jersey Division on Civil Rights against charges of various forms of discrimination. Additionally...

Laura Stutz Labor & Employment Litigation Attorney Wilson Elser Law Firm

Laura Stutz practices in the area of employment law counseling and litigation. She represents management in the hospitality, retail, financial services and health care industries, including hospitals and hospital systems, nursing homes, clinical laboratories, acute care centers and retail pharmaceuticals. Laura’s practice involves counseling employers on employment laws and employee benefit issues arising under ERISA. She also litigates on behalf of management in state and federal courts and before administrative agencies over disputes involving claims of discrimination, harassment, wrongful discharge, retaliation, whistleblowing, wage-and-hour noncompliance, misappropriation of trade secrets, and enforcement of non-competition and non-solicitation agreements. 

Several of Laura’s cases have centered on hot-button issues such as claims involving the Equal Pay Act and other wage-and-hour laws, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and its 2008 amendment, the Age Discrimination in Employment Act, the Family and Medical Leave Act, Section 1981 of the Civil Rights Act and state law fair employment statutes. Laura also handles employment-related tort, contract and whistleblower claims.  She has litigated employment cases in state and federal courts and taken appeals up to the Second Circuit and Third Circuit Courts of Appeals. Laura also has successfully defended employers in charges of discrimination filed with the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Department of Health and Human Services Office of Civil Rights and various state agencies. 

After law school, Laura served as a judicial law clerk to the Honorable Richard Newman, Judge of the Appellate Division, Superior Court of New Jersey. Before her clerkship, while pursuing her law degree, Laura received the Raymond del Tufo, Jr. Constitutional Law Award as well as an award for her pro bono service.

Areas of Focus

Employment Litigation and Compliance
Laura partners with clients to achieve their goals in the areas of compliance and litigation avoidance. She provides counsel and advice on an array of employment issues from hires to terminations and everything in between, including disciplinary actions, compliance with state and federal wage-and-hour laws, prevention of workplace harassment and violence, leaves of absence, workplace accommodations, restructurings, and due diligence related to M&A and other business transactions, and workplace issues involving Stark, HIPAA and state privacy laws.  Laura also prepares workplace policies, contracts and other documents, and guides and conducts internal investigations.