COVID-19: Recording and Reporting Obligations Under the Occupational Safety and Health Act

The fluid and fast-changing impact of the novel coronavirus (COVID-19), with an ever-increasing number of diagnosed cases, has left many employers wondering what their obligations are to the Occupational Safety and Health Administration (OSHA) with respect to COVID-19. Following the outbreak of COVID-19, OSHA issued general guidance to employers which raised a number of questions. Specifically, employers are inquiring: 1) whether they are under an obligation to record an employee's COVID-19 illness, and 2) whether that same illness mandates the employer report it to OSHA.

OSHA recordkeeping requirements, codified at 29 C.F.R. Part 1904, mandates that covered employers record certain work-related injuries and illnesses sustained by employees on their OSHA 300 log. OSHA regulations also require that employers report: 1) work-related in-patient hospitalization, amputation or loss of an eye within 24 hours, and 2) all work-related fatalities within 8 hours. Whether the presence of COVID-19 in the workplace implicates an employer's recording and/or reporting obligations depends on the results of fact-specific inquiries.

1. Is COVID-19 a Qualified Illness Under the Occupational Safety and Health Act Regulations?

Yes. The Occupational Safety and Health Act's (the OSH Act) recordkeeping and reporting requirements apply to work-related illnesses that include respiratory illnesses. While the OSH Act regulations explicitly exempt the common cold and the seasonal flu from recording and reporting requirements, OSHA has declared that confirmed cases of COVID-19, despite similarities with influenza, are not exempt. COVID-19 is therefore an illness within the meaning of the OSH Act regulations.

2. Is an Employer Required to Record an Employee's Diagnosed Case of COVID-19?

It depends. For guidance, OSHA has published three questions for employers to answer when discerning whether they have an obligation to record. All three questions must be answered in the affirmative to trigger recording obligations:

1. Is the case a confirmed case of COVID-19?
2. Is the illness work-related?
3. Does the illness include one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., days away from work and restricted work duties).

3. What Constitutes a "Confirmed Case" of COVID-19 for OSHA Recording?

To answer this question, OSHA directs employers to follow the Centers for Disease Control and Prevention (CDC) guidelines which define "confirmed case." The CDC guidelines distinguish between patients who are a person under investigation (PUI) for suspected COVID-19, a presumptive positive and a laboratory-confirmed case. For purposes of OSHA's recording requirements, only those employees who have a laboratory-confirmed case are recordable. PUIs and presumptive positives are not confirmed cases. Therefore, an employee who has symptoms of COVID-19 or is a suspected case of COVID-19 does not meet the CDC definition of "confirmed case" and the illness is not recordable under the OSH Act.

4. Is the Confirmed Case of COVID-19 "Work-Related"?

Determining the answer to this question is less certain. To date, OSHA has not provided employers with firm guidance for determining what constitutes a work-related COVID-19 illness. Making this determination is fact-specific and done on a case-by-case basis. OSHA suggests employers "evaluate the employee's work duties and environment to decide whether or not one or more events or exposures in the work environment [caused the worker to contract COVID-19]." For example, if multiple employees have contracted COVID-19, then the employer may be on notice that the likely source is work-related. If only a single employee contracts COVID-19, the source of the illness is less obvious.

5. Does the Confirmed Case of COVID-19 Meet the Recording Criteria?

Likely yes. CDC recommendations and guidelines require that an employee who is a confirmed case of COVID-19, even if asymptomatic, should self-quarantine and not report to work. The employee will likely miss work, have restricted duties, and/or require medical treatment beyond first aid.

Assuming all three questions have been answered in the affirmative, then the COVID-19 work-related illness is recordable.

6. Are All Recordable Illnesses Reportable?

No, only COVID-19 employee work-related illnesses that result in an in-patient hospitalization or death are reportable to OSHA. In-patient COVID-19 hospitalizations must be reported to OSHA within 24 hours, and work-related COVID-19 fatalities must be reported to OSHA within 8 hours.

7. What Obligation Does OSHA Impose on Employers Relative to Workplace Safety In Light of COVID-19?

There are no specific Code of Federal Regulation (CFR) standards directly applicable to COVID-19. However, in the absence of specifically applicable regulatory standards, the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 USC 654(a)(1), applies and provides that employers are required to furnish to each worker "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."

The General Duty Clause standard of care that may be applicable in COVID-19 cases is not clearly defined and may vary depending on workplace, industry and profession. Other considerations for complying with the General Duty Clause standard of care include considering guidelines and recommendations from the CDC, local and federal government directives, and industry/trade organizations.

8. What Other OSHA Standards May Be Applicable in COVID-19 Cases?

As previously stated, there is no specific standard within the OSH Act covering COVID-19. However, some of the OSH Act's regulations may apply to prevent occupational exposure to COVID-19. Among the most relevant are:

• Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I) which may require using gloves, eye protection and face protection, and respiratory protection.
• Bloodborne Pathogens (BBP) standard (29 CFR 1910.1030) applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may transmit COVID-19. However, the provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not covered by the standard.
• Employers must protect their workers from exposure to hazardous chemicals used for cleaning and disinfection. When workers are exposed to hazardous chemicals, employers must comply with OSHA's Hazard Communication standard (in general industry, 29 CFR 1910.1200).
• Finally, there are 28 OSHA-approved State Plans, operating statewide occupational safety and health programs. State Plans are required to have standards and enforcement programs that are at least as effective as OSHA's and may have different/more stringent requirements.

9. If an Employer Provides Gloves and Masks to Employees to Protect Them Under the General Duty Clause, Is the Employer Now Required to Comply with the PPE or BBP Standards?

No. The PPE and BBP standards only apply when the inherent nature of the profession or occupation requires it. For example, if an employer runs a nail salon, that employer is not required to comply with PPE or BBP if it supplies masks and gloves pursuant to its duty under the General Duty Clause.

Practical Implications for Employer Obligations Under the General Duty Clause

10. If an employee is a presumptive positive or a confirmed case of COVID-19, how does the General Duty Clause affect employer responses to this situation?

Although OSHA has been silent on this issue and not published any direct guidance, employers must maintain a safe workplace under the General Duty Clause. Therefore, employers may choose to handle this exact situation with extreme caution. Employers are routinely sending home, for 14 days, all employees who worked in close proximity (i.e., 3 to 6 feet) with the ill employee. This practice is also consistent with CDC guidance.

11. Do Employers Have Legal Authority, Under the General Duty Clause or Otherwise, to Mandate Employees Not Come to Work Because of COVID-19 Exposure?

Yes. While OSHA has not published direct guidance, the General Duty Clause allows employers to send employees home if done to ensure a safe workplace. Other federal statutes, such as the Americans with Disabilities Act, permit employers to send an employee home if they are a "direct threat" to the health or safety of other employees.  

12. Do Employers Have a Duty to Inquire into the Background of a Confirmed Ill Employee Under the OSH Act?

It depends on the circumstances of each employee but a duty to inquire may exist. Although not explicitly stated in the OSH Act, the employers duty to inquire may stem from the OSH Act's General Duty Clause. Employers are permitted to ask employees if they came into contact with someone who was exposed to COVID-19 or if they had recently traveled to a heavily impacted region. However, employers must be cognizant of the limits of this inquiry. Employers are not permitted to ask employees whether they have a medical condition that could make them especially vulnerable to the virus. Furthermore, due to the Genetic Information Nondiscrimination Act (GINA) and corollary state laws, employers are restricted from inquiring about family members or their recent potential exposure.

Next Steps

Employers should remain diligent and continue to monitor OSHA's website for further guidance. For more information or assistance on this topic, please contact the authors.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.