On May 26, 2020, OSHA rescinded its prior memo dated April 10, 2020, and provided updated “Enforcement Guidance for Recording cases of Coronavirus Disease 2019 (COVID-19)". The prior April guidance confirmed that under OSHA recordkeeping requirements, “COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19…”. However, at that time, given the rapid spread of the virus, only those employers in high-risk exposure industries were required to do a case-by-case analysis following an employee’s diagnosis of COVID-19, unless there was objective evidence that a COVID-19 case was work-related. Initially, OSHA wanted low and medium risk employers to focus response efforts on mitigating COVID-19 risks, including implementing good hygiene practices. The April memo also stated that the guidance was intended to be time-limited to the current public health crisis.

Given that the transmission and prevention of COVID-19 is now better understood, and states and work places are reopening, not to mention heavy criticism of the prior guidance, OSHA updated its April memo and expanded the duties placed on employers to investigate and record a COVID-19 work-related diagnosis by an employee. Under the new guidance all employers, including those in low and medium risk industries, must determine whether an employee’s case of COVID-19 meets the following three recording elements:

1. The case is a confirmed case of COVID-19;
2. The case is work-related as defined by 29 CFR § 1904.5; and
3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

However, employers must record a case in their injury and illness logs only when each of the three elements are met. The new guidance clarifies that reporting a COVID-19 incident does not, in and of itself, mean that the employer has violated any OSHA standard. In addition, an employer with 10 or less employees (and certain employers in low risk hazard industries) have no recording obligations unless there is a fatality, in-patient hospitalization, amputation or loss of eye.

Employers should continue to frequently check the OSHA webpage at www.osha.gov/coronavirus for updates. If you have any additional questions, please reach out to one of the attorneys in our Employment Law Group.