OSHA Revised Enforcement Guidance for Recording Cases of COVID-19
On May 19, 2020, the Occupational Safety and Health Administration (OSHA) issued Revised Enforcement Guidance regarding the recording of work-related cases of COVID-19, which can be found here .
In the early stages of the pandemic, OSHA had relaxed the enforcement of its reporting requirements in order to allow employers to focus on immediate efforts to mitigate the effects of COVID-19 in the workplace, rather than on investigating and making difficult decisions related to whether COVID-19 cases were work-related for the purposes of recording workplace health concerns.
OSHA regulations, 29 CFR Part 1904, require that employers record and report illnesses which are work-related, that is, “if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.” Employers are required to report qualifying cases in their OSHA Form 300 Log of Work-Related Injuries and Illnesses.
In its April 10 th Guidance, OSHA indicated that due to the difficulty in making determinations about whether employees who contracted COVID-19 did so due to exposure at work, OSHA exercised its enforcement discretion and did not require employers (except for healthcare, emergency response and corrections) to make work-relatedness determinations with respect to COVID-19 cases unless there was objective evidence that a COVID-19 case may be work-related and where the evidence was reasonably available to the employer. 
In its Revised Guidance, OSHA rescinds its prior position and significantly increases expectations; sending a clear signal that OSHA expects employers to do their part in protecting the health and safety of their employees during the pandemic, as employees begin to reenter the workplace. The Revised Guidance is effective May 26, 2020.
The Revised Guidance confirms that COVID-19 is a recordable illness, and that employers must record if: 1) the case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC); (2) the case is work-related; and (3) the case meets a recordable criterion (i.e., if it involves death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional).
Accordingly, OSHA will enforce recording requirements under certain guidelines, and will apply the following considerations when evaluating an employer’s determination of whether a COVID-19 case is work-related:
  • The reasonableness of the employer’s investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, to (1) ask the employee how s/he believes s/he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee her/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 exposure to the virus. The review in item (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.
  • The evidence available to the employer. The evidence that a case of COVID-19 was work-related should be based on information reasonably available to the employer at the time of the work-relatedness determination. Any subsequent information related to an employee’s COVID-19 illness should be taken into account in determining whether the employer’s initial work-relatedness determination was appropriate.
  • The evidence that a COVID-19 illness was contracted at work. The Revised Guidance lists several examples of circumstances that would make an employee’s COVID-19 illness more or less likely to be work-related.
If an employer makes a reasonable and good faith inquiry, but cannot determine whether it is more likely than not that exposure in the workplace caused a particular case of COVID-19, the employer does not need to record that COVID-19 illness.
Notwithstanding its Revised Guidance in which OSHA continues to recognize the difficulty of determining whether a COVID-19 case is work-related, employers are expected to make good faith efforts to evaluate cases and protect their employees from COVID-19 to the same extent they would protect them from other workplace health and safety hazards.
OSHA Retention Requirements for Temperature and Symptom Records
In addition to the recording of work-related COVID-19 cases, as employers begin reopening their workplaces and implementing protocols to guard against the spread of COVID-19, they should consider their record retention obligations under the OSHA regulations. If an employer maintains records of body temperatures or responses to medical inquiries, including questions related to the experience of COVID-19 symptoms, these records would constitute medical records or biological monitoring results, and must be retained by an employer for 30 years under OSHA’s record retention regulations.
An employer should evaluate the necessity of making records related to temperature checks and other inquiries related to COVID-19 symptoms or exposure, as doing so will trigger retention obligations. In the alternative, an employer may choose only to observe or receive a verbal report of an employee’s temperature or verbally inquire as to symptoms or exposure (without recording responses), or only record positive instances.
Attorney General’s Resources for Employees to Report Safety Concerns
In anticipation of additional portions of the workforce returning to workplaces, on May 20, 2020, Massachusetts Attorney General Maura Healy announced enhanced resources for workers to report safety concerns. The Attorney General’s expressed aim is to establish easier ways for employees to report unsafe working conditions related to COVID-19. The full press release can be viewed here .
The AG’s Office has created an online complaint form for employees to report unsafe working conditions related to COVID-19, including concerns about:
  • Cleaning/Disinfection

  • Failure to Display Compliance Attestation Poster

  • Hygiene

  • Personal Protective Equipment (PPE)

  • Requiring Symptomatic Employees to Work

  • Retaliation

  • Social Distancing
Complaints can be made anonymously. The AG’s Office has also encouraged workers to call its Fair Labor hotline at (617) 727-3465 to report concerns.
Given the ease with which complaints may be filed, we recommend that, as workplaces restart or expand, employers remain open to addressing employee health and safety concerns and be inclusive in establishing safety protocols for operations during these unprecedented times.
Should you have questions regarding the recording of COVID-19 cases among employees or desire further information about workplace health and safety obligations during workplace reopening, please contact a member Mirick O’Connell’s Labor, Employment, and Employee Benefits team.