Client Alert

OSHA's Updated Recording & Enforcement Guidance for COVID-19

May 29, 2020

By Ira Klein, Carson Sullivan, Ken Willner & Molly Coyne

In response to the COVID-19 pandemic, the Occupational Safety and Health Administration (“OSHA”) continues to issue and revise enforcement guidance. OSHA has issued its Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (“Revised Recording Guidance”), effective May 26, 2020. OSHA also updated its Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (“Updated Enforcement Guidance”), also effective May 26, 2020.

The Revised Recording Guidance directs employers in all industries to make a reasonable and good faith determination as to whether a case of COVID-19 is “work-related” and, if so, record it on the facility’s OSHA Log. The Updated Enforcement Guidance provides further information to enforcement personnel for handling COVID-19-related complaints, referrals, and severe illness reports covering “all investigations and inspections specifically related to the workplace hazard” of exposure to the virus causing the COVID-19 pandemic. The Updated Enforcement Guidance does not create a new occupational safety standard for COVID-19, but instead is designed to allow for flexibility and discretion so that OSHA personnel can enforce existing occupational safety and health standards amidst changing conditions.

Employers should be aware of the following key issues raised by the new guidance:

I.        OSHA Guidance Regarding When COVID-19 Illness Is “Recordable” and When It Is “Reportable”

A.       Recording Criteria

OSHA requires most employers[1] to keep records of fatalities, injuries, and illnesses, and to record each fatality, injury, or illness that is “work-related,” is a “new case,” and that meets one or more of the general recording criteria set forth in 29 C.F.R. § 1904.7 (e.g., results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness). Such cases must be recorded on a facility’s OSHA 300 Log.

OSHA has specified that COVID-19 is a “recordable” illness if: (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 (e.g., medical treatment or days away from work).

A case is considered to be “work-related” if “an event or exposure in the work environment either caused or contributed to the resulting condition….” 29 C.F.R. § 1904.5(a). Although the common cold or flu is not considered to be “work-related,” other contagious diseases are considered to be work-related if an employee is infected at work.

OSHA has clarified that COVID-19 should be coded as a “respiratory illness” on the OSHA Form 300. If an employee voluntarily requests that his or her name not be entered on the log, the employer must comply as specified under 29 CFR § 1904.29(b)(7)(vi).

B.       Reporting Criteria

Employers are also obligated to report work-related fatalities within eight hours and report in-patient hospitalization within 24 hours after learning of the incident. 29 CFR § 1904.39(a)(2). Additionally, for fatalities that do not immediately result from a work-related incident, employers must report within 30 days of the work-related incident that contributed to the fatality. 29 CFR § 1904.39(b)(6). As a result, employers whose employees are hospitalized with, or succumb to, COVID-19 must report to OSHA.[2]

II.     OSHA Will Enforce Recording Obligations; Employers Must Make Reasonable and Good Faith Determinations Whether COVID-19 Illness Is “Work-Related”

OSHA has acknowledged that, due to the nature of the COVID-19 pandemic, and the ubiquity of community spread of the disease, it is often difficult to determine whether a particular case of COVID-19 illness was acquired at work such that it would be work-related, and, therefore, recordable. As a result, OSHA had previously issued enforcement guidance on April 10, 2020, indicating that it would not enforce recordkeeping obligations related to COVID-19 for employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, or law enforcement), and correctional institutions, except where there was “objective evidence” that was “reasonably available to the employer” that indicated a COVID-19 case was work-related.

As of May 26, 2020, pursuant to the Revised Recording Guidance, OSHA has determined that, as states and economies are reopening, and workers are returning to workplaces, employers “should be taking action to determine whether employee COVID-19 illnesses are work-related and thus recordable.” Although it may be difficult to determine whether a particular case is work-related, especially where employees may have exposure to the virus outside of the workplace, OSHA has reversed course since its April 10, 2020 guidance, and has now specified that it will enforce the recordkeeping requirements, subject to the Revised Recording Guidance.

In practice, OSHA now requires employers to attempt to determine whether instances of COVID-19 disease among their employees are work-related. OSHA will consider the following guidelines when determining whether an employer has made a reasonable determination of work-relatedness:

  • The reasonableness of the employer's investigation into work-relatedness:

While OSHA does not expect employers to undertake extensive medical inquiries, if an employee is confirmed to have COVID-19, employers should at least: “(1) ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee's work environment for potential SARS‑CoV‑2 exposure.”

  • The evidence available to the employer:

OSHA expects employers to rely upon the “information reasonably available to the employer at the time it made its work-relatedness determination.”

  • The evidence that a COVID-19 illness was contracted at work:

While there is no specific formula that determines whether a case is work-related, employers (and OSHA enforcement personnel) should take into account all reasonably available evidence. Examples of evidence identified by OSHA that indicates a case may be work-related include instances where (1) several cases develop among workers who work closely together and there is no alternative explanation; (2) a case is contracted shortly after close contact with somebody who has a confirmed case of COVID-19 and there is no alternative explanation; (3) job duties include frequent, close contact with the general public in a location where there is ongoing community transmission.

OSHA has also identified examples of cases that are likely not work-related, including: (1) the employee is the only worker to contract COVID-19 in the vicinity and job duties do not include having frequent contact with the general public; (2) the employee frequently associates with someone outside the workplace who has COVID-19.

Ultimately, an employer is required to make a “reasonable and good faith inquiry” to determine if a case is “work-related” and will face potential enforcement liability for failing to do so appropriately. Cases must be recorded where an employer determines that it is “more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19.” OSHA does not require perfect certainty; rather, as long as it appears more likely than not that workplace exposure contributed to COVID-19 illness, the case must be recorded.

III.   OSHA Will Continue to Prioritize Enforcement Activities Based on Identified Risk Levels, as Well as Workplaces with High Numbers of Complaints or Confirmed Cases

OSHA’s Updated Enforcement Guidance, which replaces the April 13, 2020 interim guidance (“April 2020 Enforcement Guidance”),[3] is also effective as of May 26, 2020. The updated guidance indicates that OSHA will continue to prioritize COVID-19 cases, with reference to the workplace risk levels identified in OSHA’s March 2020 Guidance on Preparing Workplaces for COVID-19, publication 3990 (“March 2020 Workplace Guidance”), with particular focus on high-risk workplaces, such as hospitals and healthcare providers treating patients with COVID-19. Inspection resources will be keyed on COVID-19 fatalities and imminent danger exposures.

Significantly, the Updated Enforcement Guidance expands OSHA’s focus to also include workplaces with “high numbers of complaints or known COVID-19 cases.”

IV.    OSHA Will No Longer Rely on “Non-Formal Procedures” at Medium or Lower Exposure Risk Workplaces

While the April 2020 Enforcement Guidance stated that OSHA will use “non-formal procedures” to investigate alleged hazards at medium or low risk workplaces, OSHA now expects to follow normal procedures at such workplaces. Fatalities, imminent danger reports, and life-critical activities (e.g., falls or electrocutions), will likely result in on-site inspections. OSHA has further clarified that formal complaints may also result in on-site inspections “based on case-specific facts or resource limitations constraining such investigations.”

In high-risk workplaces, or in areas where a local area is experiencing either a sustained elevated community transmission or a resurgence in community transmission, OSHA will continue to rely on modified procedures in order to protect enforcement staff. For example, initial notification and opening conferences may be made by phone, document review may be conducted remotely, and any walk around inspections will be conducted to minimize exposure to enforcement staff, where possible. Employers should prepare to be cooperative in light of such concerns.

V.       OSHA Continues to Identify, and Provide Guidance on, Priority Safety and Health Standards

OSHA has not promulgated a specific safety order related to COVID-19. Instead, like in the April 2020 Enforcement Guidance, the Updated Enforcement Guidance identifies several standards that may apply and could be implicated during an investigation, depending on the factual circumstances. These standards include, but are not limited to, the following:

  • Recording and reporting occupational injuries and illnesses (29 CFR § 1904 et seq.);

  • Personal protective equipment (29 CFR §§ 1910.132 (general requirements); 1910.133 (eye and face protection);

  • Respiratory protection (29 CFR § 1910.134);

  • Sanitation (29 CFR § 1910.141); and

  • Access to exposure and medical records (29 CFR § 1910.1020).

Aside from identifying those standards that may be especially implicated as a result of the pandemic, the Updated Enforcement Guidance provides further information regarding select standards.

A.       Medical & Exposure Records

OSHA has clarified that records concerning an “employee’s work-related exposure to SARS-CoV-2 is an employee exposure record” under Section 1910.1020(c)(5), and that records of COVID-19 medical test results, medical evaluations, or medical treatment are considered “employee medical records” subject to Section 1910.1020(c)(6). Such records must typically be kept for thirty years. 29 C.F.R. § 1910.1020(d). The Updated Enforcement Guidance also refers to the Revised Recording Guidance with respect to injury and illness recordkeeping.

B.       Respiratory Protection

OSHA also provides specific guidance regarding the respiratory protection standard, which is specifically keyed to healthcare operations. The Updated Enforcement Guidance notes that, as part of enforcement activities, enforcement personnel will evaluate whether healthcare or emergency response workers who are expected to perform very high and high risk exposure tasks are using respirators rated N95 or better that are within their recommended shelf life.

Although appropriate respiratory protection is required for healthcare personnel providing care to patients with suspected or confirmed cases of COVID-19, OSHA has acknowledged that supplies of such PPE may be limited, and has provided specific enforcement discretion as a result.[4] Ultimately, OSHA’s enforcement guidance for respiratory protection requires that employers make good faith efforts to provide and use the most appropriate respiratory protection available for exposures to COVID-19, including by addressing hazards in accordance with the hierarchy of controls and obtaining appropriate respirators.

OSHA may exercise enforcement discretion on a case-by-case basis when considering issuing citations under respiratory health standards. However, where respiratory protection is required, or voluntary use is permitted, and an employer fails to take reasonable steps and does not comply with fit testing, maintenance, care, and training requirements, OSHA will issue a citation as a “serious” citation.

C.       General Duty Clause

Like the April 2020 Enforcement Guidance, the Updated Enforcement Guidance continues to indicate that, if OSHA standards or regulations do not address any identified deficiencies and guidance regarding appropriate procedures is available, enforcement personnel may issue a “General Duty Clause” violation pursuant to §5(a)(1) of the Occupational Safety and Health Act.[5] Such a citation is appropriate where (1) the employer failed to keep the workplace free of a hazard to which employees are exposed; (2) the hazard was recognized; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) there was a feasible and useful method to correct the harm.

Ultimately, employers should review and evaluate their workplace for potential exposure hazards, and eliminate or mitigate such hazards according to the hierarchy of controls (i.e., engineering controls, administrative controls, work practices, and personal protective equipment) and OSHA guidance. Employers should also review their practice, policies, and training materials related to these and other potentially applicable standards.

VI.    Compliance with CDC Guidance and Other OSHA Guidance May Obviate General Duty Clause Violations

As we advised in our prior alert, with respect to General Duty Clause violations, the Updated Enforcement Guidance directs enforcement personnel to consider whether guidance is available that addresses any deficiencies not addressed by OSHA standards or regulations. In addition to the March 2020 Workplace Guidance, OSHA has provided interim guidance for various occupations.

The Updated Enforcement Guidance also specifically directs enforcement personnel to consult the most recent Centers for Disease Control (“CDC”) guidance in order to assess workplace hazards and evaluate whether an employer has implemented adequate measures to protect the workforce. The CDC provides a variety of resources for businesses and employers to consider and implement to ensure that the workplace remains safe. CDC guidance, as well as guidance issued by state and local agencies, includes information and specific recommendations targeted at reducing transmission among employees; maintaining healthy business operations; and maintaining a healthy work environment.

Although CDC guidance is frequently changing, the Updated Enforcement Guidance directs enforcement personnel to consider current CDC guidance on safety measures to protect employees. In situations where the employer’s protective measures are less stringent than those recommended by the CDC, enforcement personnel should consider whether employees are exposed to a recognized hazard and whether there are “feasible means” to abate the hazard. Thus, the Updated Enforcement Guidance continues to rely upon CDC guidance as the standard for appropriate workplace protections.

Although the OSHA Enforcement Guidance does not state this explicitly, compliance with CDC guidance may obviate any violations of the General Duty Clause.[6] As a result, employers should frequently review, and endeavor to implement and abide by, applicable CDC (and any other OSHA and public health) guidance where feasible.

We will continue to monitor for additional guidance from OSHA and other relevant agencies during the COVID-19 pandemic. Click here to read more from our Coronavirus series.

[1]   Employers with 10 or fewer employees, as well as certain employers in specific, low hazard industry groups, are not required to keep injury and illness records, unless specifically requested by OSHA. See 29 CFR §§ 1904.1(a)(1), 1904.2..

[2]   Although not governed by OSHA, employers may also need to report positive cases of COVID-19 to local health agencies.

[3]  Our analysis of the April 2020 Enforcement Guidance is available here: https://www.paulhastings.com/publications-items/details/?id=342b286f-2334-6428-811c-ff00004cbded.

[4]  OSHA has issued several memoranda addressing respiratory protection measures. See, e.g., OSHA Memorandum, Temporary Enforcement Guidance - Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak, issued on March 14, 2020, www.osha.gov/memos/2020-03-14/temporary-enforcement-guidance-healthcare-respiratoryprotection-annual-fit; OSHA Memorandum - Expanded Temporary Enforcement Guidance on Respiratory Protection Fit-Testing for N95 Filtering Facepieces in All Industries During the Coronavirus Disease 2019 (COVID-19) Pandemi_c, April 8, 2020, www.osha.gov/memos/2020-04-08/expanded-temporary-enforcementguidance-respiratory-protection-fit-testing-n95; O_SHA Memorandum - Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic, April 3, 2020, www.osha.gov/memos/2020-04-03/enforcement-guidance-respiratory-protection-and-n95-shortage-due-coronavirus; OSHA Memorandum - Enforcement Guidance for Use of Respiratory Protection Equipment Certifiedunder Standards of Other Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandemic, April 3, 2020, www.osha.gov/memos/2020-04-03/enforcement-guidance-userespiratory-protection-equipment-certified-under. OSHA Memorandum - Enforcement Guidance on Decontamination of Filtering Facepiece Respirators in Healthcare During the Coronavirus Disease 2019 (COVID-19) Pandemic, April 24,2020, www.osha.gov/memos/2020-04-24/enforcement-guidance-decontamination-filtering-facepiecerespirators-healthcare.

[5]  Section 5(a)(1) of the Occupational Safety and Health Act requires each employer to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm….” 29 U.S.C. § 654.

6 Although not addressed or discussed in the OSHA Enforcement Guidance, any mandatory state or local orders requiring particular safety precautions (e.g., mandated symptom checks or face coverings) could also conceivably be used as a baseline for a General Duty Clause violation.

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