New OSHA enforcement guidance imposes recordkeeping requirements on employers for confirmed cases of COVID-19 in the workplace. When an employee becomes ill with COVID-19, employers are required to conduct a “mini-investigation” into the cause of the employee’s infection while respecting the worker’s privacy. If the employee was infected at work or while performing work-related activities, the employer must record the illness on the OSHA Form 300.

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness. Employers must record cases of COVID-19 on the OSHA 300 log if:

• The case of COVID-19 is confirmed;

• The case of COVID-19 is work-related; and

• If the illness results in death, days away from work, restricted work or the transfer to another job, medical treatment beyond first aid, or the loss of consciousness. 

Recording a case of COVID-19 does not mean, in and of itself, that an employer has violated any OSHA standard. 

Employers are additionally obligated to report work-related COVID-19 infections that result in a fatality, an employee’s in-patient hospitalization, an amputation, or the loss of an eye, even if the employer is not otherwise subject to OSHA recordkeeping requirements. 

Employers are required to make reasonable efforts to determine if the exposure might be work-related and cannot simply assume that transmission occurred outside of work. Those reasonable efforts include:

• Asking the employee limited questions about how they believe COVID-19 was contracted.

• Making inquiries about the employee’s work and nonwork activities, and possible exposure, leading up to the diagnosis, while respecting privacy.

• Investigating the employee’s work environment to determine whether COVID-19 exposure was possible. This may include considering whether other employees in the work area have tested positive, the employee’s job duties and exposure to the public, and whether the work areas are crowded and do not facilitate social distancing. 

Asking these questions and considering readily available evidence is all that’s required. Employers aren’t expected to conduct an extensive investigation into the employee’s activities outside of work.

Some of the factors that may constitute evidence that COVID-19 was contracted at work include:

• When several cases develop among workers who work closely together there is no alternative explanation.

• If a case is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.

• If the employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

Whereas, an employee’s COVID-19 infection is likely not work-related if:

• They are the only workers to contract COVID-19 in their area and their job duties do not include frequent contact with the general public, regardless of community spread.

• They closely and frequently associate with someone outside of the workplace who (1) has COVID-19, (2) is not a coworker, and (3) exposes the employee during the period in which they are likely infectious.

If the employer isn’t able to determine whether it’s more likely than not that exposure in the workplace caused that particular employee’s COVID-19 infection after they’ve conducted a reasonable, good-faith investigation as described above, the employer does not need to record that COVID-19 illness. If the employer learns something later that changes the employer’s determination of the work-relatedness of the infection, the employer will need to update their investigation records and their recordings of occupational illness in the OSHA 300 log

Employers must conduct these limited investigations while preserving the employee’s right to privacy. Extensive medical inquiries may violate the ADA or other laws. Ex.:

• Don’t ask the employee if a spouse or child has COVID-19.

• Do ask how the employee thinks they got the virus and whether it was outside of work. If the employee states that someone in their household has been infected recently, the employee’s case is likely not work related.

It’s, unfortunately, almost inevitable that an employee in your business will test positive for COVID-19, sooner or later. Every reported infection will require you to mobilize a rapid response to ensure the safety of your team while also maintaining the privacy of the infected employee. Visit our website for tools and resources designed to help you along the way. And, as always, we’re here to provide support when you need us.