On May 19, 2020, the United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued “Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19).” This guidance rescinded previous enforcement guidance altering the recordation requirement for COVID-related illness and injuries.
Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness and employers are responsible for recording cases of COVID-19 if:
(1) the case is confirmed, as defined by the CDC;
(2) the case is work-related as defined by 29 C.F.R. §1904.5; and
(3) the case involves one or more of the general recording criteria in 29 C.F.R. § 1904.7.
Given the degree of community transmission of COVID-19, the second element, whether a case is work-related, poses a particularly challenging question for employers. The new guidance requires that employers conduct a “reasonable and good faith inquiry” to determine whether an employee contracted COVID-19 at work. The checklist below, which is based on factors in the guidance, sets forth recommended questions to ask and actions to take to satisfy the employers’ requirement to make a reasonable and good faith inquiry:
- Ask the sick employee how she believes she contracted COVID-19.
- While respecting employee privacy, discuss whether she has frequent contact with someone (g. a family member, significant other, or close friend) who has COVID-19.
- While respecting employee privacy, discuss the employee’s work and out-of-work activities that may have led to contracting COVID-19.
- Review the employee’s work environment for potential COVID-19 exposure risks.
- Follow-up with co-workers of the infected employee to determine if they are experiencing any symptoms of COVID-19.
- Review records to determine whether the employee had close exposure to a particular coworker, customer, or client who has a confirmed case of COVID-19.
- Review the employee’s job duties and determine whether she had close exposure to the general public and whether there is ongoing community transmission of COVID-19.
- Assess whether there are any other alternative explanations for how and where the employee contracted COVID-19.
According to the guidance, if, after a reasonable and good faith inquiry, the employer cannot 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, the employer does not need to record that COVID-19 illness.
Employers should consider hiring an independent third party to conduct the investigation and make a recommendation to the employer whether it is more likely than not that exposure in the workplace played a causal role with respect to the particular employee’s COVID-19. This will provide more credibility to the investigation and conclusion.