By Deborah Hollander, Esq.
Employers with more than 10 employees (unless in an exempt industry or government agency) are required to keep a record of serious work related injuries and illnesses, called the OSHA 300. The OSHA 300 records must be maintained at the worksite for at least five years. Each February through April, employers must post a summary of the injuries and illnesses recorded the previous year. Also, if requested, copies of the records must be provided to current and former employees, or their representatives.
OSHA has issued a guidance on its website on when COVID-19 workplace exposures are “recordable” on the OSHA 300 Log. OSHA lists three conditions which have to be met in order for a COVID-19 illness to be “recordable.” Not every case in which an employee reports having COVID-19 must be listed on the log.
The Three Factor Test for a “Recordable” COVID-19 Exposure
Employers are only responsible for recording cases of COVID-19 if all of the following are met:
- The case is a confirmed case of COVID-19, i.e., an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19. A suspected case, without a laboratory diagnosis should not appear on the log. Nor are cases in which an employee “self-quarantines” without ever being diagnosed.
- The case is work-related, as defined by 29 CFR 1904.5, and
- The case involves 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 Eases the Work Related Analysis for Non-Health Care Employers
It has been the second criteria which has been the most difficult to implement. Although it is certainly the general rule that an injury or illness must be “work related” to be recorded on the log, this standard is not easily evaluated for COVID-19. The second factor is whether illness was contracted at work and was “work related.” Under 29 CFR § 1904.5, an employer must consider an injury or illness to be work-related if an event or exposure in the work environment (as defined by 29 CFR § 1904.5(b)(1)) either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in 29 CFR § 1904.5(b) (2) specifically applies. See www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.5.
The exceptions typically involve questions of whether the employee was engaged in his scope of duties at the time of a specific exposure. A specific exposure may be, at least in theory, be readily identifiable suitable for identifying when a person is exposed with work place materials that are known to be such as asbestos. For instance, a fast food worker who contracts salmonella while preparing hamburgers for customers would have been exposed in a work related situation. That same employee would not have a work related exposure, if he returned after his shift to buy a dinner for himself. These types of distinctions presume that one can pin point at least one clear point of exposure.
However, in a pandemic, the potential exposure exists in the general public as well. An employee may receive exposure at work, or at Church, or in the family home. Originally, OSHA did not provide any guidance which recognized this dilemma, forcing conscientious employers to try conduct their own
Therefore, on April 10, 2020, OSHA clarified its policy for the second criteria:
“In areas where there is ongoing community transmission, employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. In light of those difficulties, OSHA is exercising its enforcement discretion in order to provide certainty to the regulated community.
Employers of workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904. Until further notice, however, OSHA will not enforce 29 CFR § 1904 to require other employers to make the same work-relatedness determinations, except where:
- There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
- The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.”
This enforcement policy will help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.”
The Redundancy of the Third Factor
The third factor is whether the illness or injury is seriousness enough to be “recordable.” An invisible paper cut, for instance, may occur in the office and may be work related but is not usually serious enough to be recordable. In other situations, this factor limits trivial cases from being entered on the Log.
According to OSHA:
“A work-related injury or illness must be recorded if it results in one or more of the following: Death; one or more days away from work; restricted work or transfer to another job; Medical treatment beyond first aid; loss of consciousness.”
It is hard to imagine a Confirmed COVID-19 case that does not meet this criteria. In order to be confirmed case, there must have been a positive laboratory specimen test, and given the testing shortages, such tests are not available unless one has already shown symptoms. Indeed, in many cases, the test may not be available unless the employee has already sought medical treatment. The CDC and OSHA are both recommending that a worker who even appears to show symptoms be sent home until receiving a negative test or otherwise being cleared as negative. In some states, such as New Jersey, emergency orders require an employee showing symptoms of COVID-19 to immediately be “separated” from the rest of the workforce, i.e., missing work or being restricted from the physical work place. Therefore, this third criteria will almost always be redundant. The employer must record the employee as having a work place related exposure if the employee receives a laboratory confirmed diagnosis, and either based upon regulatory criteria or “objective evidence” reported to the employer, there was work related exposure.