On May 19, 2020, the Occupational Safety and Health Administration (“OSHA”) issued two noteworthy enforcement memos. The first memo announced the reversal of OSHA’s April 10, 2020 policy that limited the requirement to track on-the-job cases of COVID-19 to health-care facilities, emergency response providers, and corrections facilities. The new policy, which goes into effect on May 26, 2020, mandates that all employers who are required to maintain OSHA injury and illness logs determine whether employees’ cases of the COVID-19 virus are “work-related” and record those that meet certain requirements. Specifically, employers subject to OSHA’s recordkeeping requirements must record a case of COVID-19 as job-related if (1) it is a confirmed case of the virus as defined by the CDC, (2) it is “work-related” in that an event or exposure in the work environment either contributed to or caused an employee to contract the virus, and (3) it results in death, days away from work, restricted work or transfer, medical treatment beyond first aid, or loss of consciousness or involves a significant diagnosed injury or illness. Employers who have no recordkeeping obligations need only report work-related COVID-19 illnesses resulting in an employee’s death or in-patient hospitalization, amputation, or loss of an eye.

Recognizing the inherent difficulty in identifying the origin of COVID-19 cases in light of the virus’s spread across the country, OSHA stated that the agency will consider the reasonableness of the employer’s investigation, the evidence accessible to the employer at the time of the work-relatedness determination, and the evidence that a case was or was not contracted at work in assessing compliance with the recordkeeping obligation. The agency’s guidance describes a “sufficient” investigation into work-relatedness and also provides examples that weigh in favor of or against the likelihood that an employee’s COVID-19 illness is work-related.

The agency cautioned that recording a COVID-19 case does not necessarily mean the employer violated an OSHA standard. Nevertheless, any designation by an employer that a COVID-19 case is job-related could be used as evidence against the employer in a workers’ compensation claim or a suit for damages by the employee or his family. OSHA’s enforcement memo states that employers who are unable to determine “whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19” after making a reasonable inquiry are not required to record that case. Accordingly, while employers must comply with OSHA regulations, they should proceed very carefully in assessing whether an employee’s COVID-19 case is work-related and recordable.

OSHA’s second enforcement memo on May 19 supersedes April guidance that directed regional agency officials to focus in-person workplace investigation activity on health care and other high-risk workplaces. OSHA has now directed its personnel to consider resumption of in-person investigation activity at all businesses in areas where community spread of COVID-19 has decreased.

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