COVID-19: OSHA Reversal on Recordkeeping and President’s Executive Order on Enforcement Discretion

COVID-19 Update

May 21, 2020
Jill Hyman Kaplan
MGKF Special Alert

In our April 16 Special Alert, we summarized OSHA’s April 10 Enforcement Guidance which indicated OSHA would not require most employers to make a work-relatedness determination for employees with COVID-19.  On Tuesday, May 19, OSHA reversed this position.  Under the new policy, as of May 26 OSHA will go back to enforcing the OSHA recordkeeping requirements for all employers.  To determine if an employee with COVID-19 is an illness that should be recorded on a company’s OSHA 300 log, the following elements must exist:

  • There is a confirmed case of COVID-19;
  • The employee’s illness is “work-related” as defined by 29 CFR 1904.5; and
  • The case involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

OSHA acknowledges, however, that in many instances it will be difficult to determine whether a case of COVID-19 is work-related.  Thus, the import of this change in position is mostly that when confronted with a case of COVID-19, the employer needs to make a reasonable effort to determine if a COVID-19 case is work-related.  If after a reasonable and good faith inquiry, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role, the employer does not need to record that COVID-19 illness. 

The Revised Enforcement Guidance provides elements for an inspector to consider in determining whether an employer has made a reasonable effort to make a work-relatedness determination.  In most circumstances, it appears that asking questions of the employee, while also respecting the employee’s privacy, will be a sufficient investigation.  Employers are not expected to undertake extensive medical inquiries.  However, if several cases of COVID-19 develop among workers who work close together, and there is no alternative explanation, that may be considered sufficient evidence of work-relatedness. 

Please remember that there are different criteria for when an illness must be recorded on an OSHA log versus reported to OSHA.  A work-related COVID-19 case would only trigger an OSHA reporting obligation if it resulted in a fatality, in-patient hospitalization, amputation or loss of an eye.   

As more States are starting to allow businesses to reopen, concerns have been expressed over companies’ liability exposure if workers become ill.  In response to these and other economic concerns, on Tuesday President Trump issued an Executive Order that, among other things, instructs administrative agencies to exercise enforcement discretion by declining to enforce against entities that have attempted in reasonable good faith to comply with applicable requirements.  The Order specifies that the CDC and other agencies have issued guidance on COVID-19, and that an entity’s reasonable attempt to comply with such guidance is an appropriate rationale for declining enforcement.  On the other hand, “[n]on-adherence to guidance shall not by itself form the basis for an enforcement action by a Federal agency.”  While this Executive Order will not protect employers from private lawsuits, it likely indicates that if a company can document it made reasonable efforts to comply with CDC, OSHA and other applicable COVID-19 guidances, it should be able to avoid being the target of Federal administrative actions.  

If you have questions about this Special Alert or other OSHA-related issues, please contact Jill Kaplan at 484-430-2315.