May 27, 2020

Employers Must Now Record Cases of Work-Related COVID-19

Update: On September 17, 2020, Governor Gavin Newsom signed three bills, two of which created new reporting requirements (SB 1159 and AB 685). For more information about AB 1159 and AB 685, please see: Three New California Bills Greatly Expand Employers’ Obligations Regarding COVID-19 and Employee Leave

Update: On July 24, 2020, California released the Employer Playbook for a Safe Reopening. The Employer Playbook requires businesses in California to comply to more strict recordkeeping requirements of California’s Division of Occupational Safety and Health (“DOSH” or “Cal/OSHA”) as compared to the Occupational Safety and Health Administration (“OSHA”). For example, California employers must report to Cal/OSHA within eight hours after the employer knows, or with diligent inquiry would have known, of any serious illness that occurred at work or in connection with work. An illness is “serious,” if it requires inpatient hospitalization for other than medical observation or diagnostic testing. For more information about the Employer Playbook, please see: California’s New “Employer Playbook” Helps Employers Prepare for and Respond to COVID-19 Situations.
On May 19, 2020, the Occupational Safety and Health Administration (OSHA) released new guidance explaining how Compliance Safety and Health Officers (CSHOs) will ensure employers’ compliance on recording cases of work-related COVID-19 illnesses. 

On May 26, 2020, the new guidance became effective, replacing previous guidance suspending such recording obligations for the majority of employers. The new guidance states that under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness and employers are responsible for recording a confirmed case of work-related COVID-19 illnesses that involve one or more of the general recording criteria (e.g., employee’s death, days away from work, medical treatment, etc.)  

OSHA acknowledges that it will be difficult to determine the work-relatedness of COVID-19 cases; thus, OSHA is allowing CSHOs to use discretion to assess employers’ efforts in making work-related determinations. In determining whether an employer has complied with its recordkeeping obligations, CSHOs will consider: 

1. The Reasonableness of the Employer’s Investigation into Work-Relatedness. Employers, especially small employers, are not expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of experience in this area. Instead, it is sufficient in most circumstances for the employer (1) to ask the employee how they believe they contracted COVID-19; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to contracting COVID-19; and (3) review the employee’s work environment for potential COVID-19 exposure (e.g., how many other instances of workers in that environment contracted COVID-19).

2. The Evidence Available to the Employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee’s COVID-19 illness, then that information will be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.

3. The Evidence that a COVID-19 Illness was Contracted at Work. CSHOs will take into account any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee themselves. CSHOs will also take into account certain types of evidence that may weigh in favor of or against work-relatedness. For example, a COVID-19 illness is likely work related (1) when several cases develop among workers who work closely together and there is no alternative explanation, (2) if it 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, or (3) if an 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. A COVID-19 illness is likely not work-related (1) if the employee is the only worker to contract COVID-19 in their vicinity and their job duties do not include having frequent contact with the general public, regardless of the rate of community spread or (2) if the employee, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (a) has COVID-19; (b) is not a coworker, and (c) exposes the employee during the period in which the individual is likely infectious. 

If, after the reasonable and good faith inquiry, as described above, 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. If the employer does need to record a COVID-19 illness, the employer should code COVID-19 as a respiratory illness on the OSHA Form 300. Please note that because COVID-19 is an illness, if an employee voluntarily requests that his or her name not be entered on the log, the employer must comply.