Is there a more terrifying sound right now? As the world battles the COVID-19 pandemic, employers are paying closer attention than ever to the health of their workers. Any potential coronavirus symptom—cough, fever, fatigue, shortness of breath, difficulty breathing—is a cause for alarm, particularly for essential organizations that have no choice but to continue in-person operations. Given how infectious and lethal the virus can be, any possible carrier needs to be tested and, if sick, immediately isolated and treated.
Of course, that’s assuming they can get tested. The United States is facing national shortages of supplies on every front of the fight against COVID-19, from testing kits to masks to hand sanitizer. It’s a monumental challenge to keep workers safe from infection, let alone determine who may be actually sick, along with where and when they fell ill.
All of which makes it difficult to record and report an employee’s coronavirus case to the Occupational Safety and Health Administration. It seems like a catch-22: you can’t document an illness you can’t confirm, but you also can’t risk the penalty for failing to report. OSHA is temporarily giving employers some leeway. Here’s what you need to know.
Yes, COVID-19 Is an OSHA Recordable Illness—But a Case Has to Meet Certain Specifications
Under OSHA’s recordkeeping requirements, COVID-19 does count as a recordable illness. However, there are a few caveats to keep in mind.
An employee’s COVID-19 case needs to be documented and reported to OSHA if—and it’s a big if—the case is 1) confirmed, 2) occurred in the work environment, and 3) meets OSHA’s general recording criteria.
Let’s break each of these down:
1. According to OSHA, confirmed means “the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC).” You can’t assume an employee has COVID-19; they have to be tested before you can report it. When OSHA refers to a confirmed case, the agency is referring to a case involving “an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19.”
2. OSHA considers an illness or injury to be work-related “if an event or exposure in the work environment (as defined by 29 CFR § 1904.5(b)(1)) either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.” The virus would need to have been transmitted in the workplace (through a handshake or unsanitized surface, for example), with clear evidence of transmission, for the case to be recordable.
3. OSHA’s criteria specify that an illness is recordable when it results in “death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.” However, even if it results in none of those things, the case is recordable “if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional.” Otherwise, the case is not considered recordable.
Keep in mind that all 3 of these specifications need to be met for the case to be recordable. For instance, if an employee got sick with COVID-19 and fell seriously ill—but that individual contracted the virus outside of the workplace—you likely don’t have to report the case to OSHA.
- If you can’t confirm an employee’s illness is COVID-19, it may not be recordable.
- If you can’t confirm that the infection was transmitted in the workplace, it may not be recordable.
- If the employee is still alive, is still working the same job, didn’t miss any workdays, didn’t lose consciousness, and didn’t suffer serious injury or illness, the case may not be recordable.
We’re using the word “may” here because every circumstance is different. If you’re not sure whether a case counts as an OSHA recordable illness or not, please contact KPA.
OSHA Is Limiting Enforcement
Here’s another reason to rest a little easier. OSHA has acknowledged that many employers “may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.” Therefore, the agency “is exercising its enforcement discretion in order to provide certainty to the regulated community.”
In non-regulatory speak, that means OSHA is being very selective about where and when it punishes employers for not reporting COVID-19 cases.
Not all organizations are off the hook, however (emphasis added):
“Employers of workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904.”
For the time being, OSHA will not hold other employers to the same standard—unless “[t]here is objective evidence that a COVID-19 case may be work-related” and “[that] evidence was reasonably available to the employer.”
What does that mean? According to OSHA, objective evidence looks like “a number of [COVID-19] cases developing among workers who work closely together without an alternative explanation.” The evidence would be information your employees provide, as well as information you learn about your employees’ health and safety “in the ordinary course of managing [your] business and employees.”
Basically, if it’s undeniable that employees are sick with the coronavirus, you could be in trouble for failing to report the cases. But where there’s uncertainty and no way of confirming (i.e. no tests) available, OSHA probably isn’t going to come after you for not reporting.
Fewer Enforcement Actions = More Energy to Focus on Keeping Employees Safe and Healthy
It bears mentioning that none of this means you can loosen up on sanitation, cleaning, and employee health and safety practices. In fact, OSHA hopes the temporary enforcement policy will “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.”
Continue to ensure your employees wash their hands, practice social distancing, cover their coughs and sneezes, clean and disinfect surfaces, and follow other CDC guidelines.
To read OSHA’s full Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), click here.