As businesses across the United States begin to reopen, employers should be aware of two revised guidance documents the Occupational Safety and Health Administration (OSHA) has released that address enforcing and recording cases involving COVID-19. The two guidance documents, both effective May 26, 2020,1 address how OSHA will respond to employee COVID-19 safety and health complaints as well as how an employer determines under what circumstances an employee who tests positive for COVID-19 is an occupational illness that must be recorded on the employer’s OSHA Form 300 (for those employers required to record occupational injuries and illnesses).
In those geographic areas in which the incidence of COVID-19 has significantly decreased, OSHA will prioritize investigations of employee COVID-19 complaints and conduct site inspections involving such complaints in accordance with OSHA’s standard practice. In those geographic areas in which the incidence of COVID-19 is elevated, OSHA will prioritize site inspections on those circumstances involving employee deaths and imminent danger situations of COVID-19 contagion.
For those employers that are required to record occupational illnesses on OSHA 300 logs,2 an employer must record a case of COVID-19 if (1) the employee tested positive for COVID-19; (2) the case is work-related; and (3) the case involved the employee’s death, days away from work, restricted work, transfer to another job, medical treatment or loss of consciousness.3 All employers, however, are required to report to OSHA work-related COVID-19 employee in-patient hospitalizations within 24 hours of the hospitalization and work-related COVID-19 employee deaths within eight hours of the death (provided that the work-related COVID-19 exposure occurred within the past 30 days).4
Sidley Austin LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship.
Attorney Advertising - For purposes of compliance with New York State Bar rules, our headquarters are Sidley Austin LLP, 787 Seventh Avenue, New York, NY 10019, 212.839.5300; One South Dearborn, Chicago, IL 60603, 312.853.7000; and 1501 K Street, N.W., Washington, D.C. 20005, 202.736.8000.