OSHA Recordkeeping Requirements For COVID-19 Cases
April 15, 2020
The Occupational Safety and Health Act (“OSHA”) and the implementing federal regulations (29 C.F.R. Part 1904) require employers to prepare and maintain records of occupational injuries and illness (the “OSHA Recordkeeping Requirements”). 20 C.F.R. § 1904.29. Employers subject to the OSHA Recordkeeping Requirements must complete three forms to satisfy their recording obligations. As detailed in our previous Client Alert, the United States Department of Labor (“U.S. DOL”) issued interim enforcement guidance on April 10, 2020, regarding the recording of COVID-19 cases pursuant to the OSHA Recordkeeping Requirements. This Client Alert provides an overview of the OSHA Recordkeeping Requirements, including the recording of COVID-19 cases.
Employers Subject to the OSHA Recordkeeping Requirements
- Employers in the following industries with 11 or more employees at any time during the previous calendar year must prepare and maintain OSHA records:
- Agriculture, Forestry, and Fishing (SIC's 01-02 and 07-09)
- Oil and Gas Extraction (SIC 13 and 1477)
- Construction (SIC's 15-17)
- Manufacturing (SIC's 20-39)
- Transportation and Public Utilities (SIC's 41-42 and 44-49)
- Wholesale Trade (SIC's 50-5 1)
- Building Materials and Garden Supplies (SIC 52)
- General Merchandise and Food Stores (SIC's 53 and 54)
- Hotels and Other Lodging Places (SIC 70)
- Repair Services (SIC's 75 and 76)
- Amusement and Recreation Services (SIC 79)
- Health Services (SIC 80)
29 C.F.R. §§ 1904.1, 1904.2.
- Employers with more than one establishment should combine the number of employees at each establishment to determine if they are subject to the OSHA Recordkeeping Requirements. 29 C.F.R. § 1904.1.
- Employers in all other industries are exempt from the OSHA Recordkeeping Requirements, unless specifically requested by the U.S. DOL to maintain OSHA records. 29 C.F.R. § 1904.2; see 29 C.F.R. Appendix A.
- However, all employers, regardless of size or industry, must report any workplace incident that results in an employee's death, in-patient hospitalization, amputation, or loss of an eye to the Occupational Safety and Health Administration, even if the employer is not subject to the OSHA Recordkeeping Requirements. 29 C.F.R. § 1904.2.
The OSHA Log
- An OSHA Form 300 - Log of Work-Related Injuries and Illness (the “OSHA Log”) must be prepared and maintained by employers subject to the OSHA Recordkeeping Requirements for each physical establishment that the employer expects to be operational for at least one year. See 29 C.F.R. §§ 1904.29, 1904.46.
- For employers with employees working from home, OSHA does not consider each worker’s home to be an establishment for record-keeping purposes. 29 C.F.R. § 1904.46.
- Basic Recording Requirements: Employers must record on the OSHA Log each injury and illness that:
- Is work-related;
- Is a new case; and
- Satisfies one or more of the general recording criteria.
29 C.F.R. § 1904.4
- Work-Related Injuries and Illness
- Employers are only required to record work-related injuries and illnesses on the OSHA log. See 29 C.F.R. §§ 1904.4, 1904.5.
- Work-Relatedness is determined by analyzing whether an event or exposure in the work environment
- (1) caused or contributed to the resulting condition, or
- (2) significantly aggravated a pre-existing injury or illness.
29 C.F.R. § 1904.5.
- Events Or Exposures In The Work Environment Causing Or Contributing To Injuries And Illnesses.
- Work-relatedness is presumed for injuries and illnesses caused by or resulting from events or exposures occurring in the work environment. 29 C.F.R. § 1904.5.
- The OSHA regulations provide exceptions to the work-relatedness presumption. These exceptions include, but are not limited to:
- the illness or injury is solely the result of an employee doing personal tasks unrelated to their employment at the workplace outside of the employee's assigned working hours;
- the illness or injury results solely from a non-work-related event or exposure that occurred outside the work environment but involves signs or symptoms that surfaced at work;
- the employee was present in the workplace as a member of the general public;
- the illness or injury is solely the result of an employee eating, drinking or preparing food or drink for personal consumption; or
- the illness or injury is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.
29 C.F.R. § 1904.5(b)(2).
- Events Or Exposures In The Work Environment Significantly Aggravating A Pre-Existing Injury or Illness.
- An event or exposure in the work environment significantly aggravates a pre-existing injury or illness when the event or exposure results in one of the following, which would not have occurred but for the occupational event of exposure:
- Loss of consciousness;
- One or more days away from work, days of restricted work, or days of job transfer; or
- Medical treatment that was not needed before the workplace event or exposure, or a change in medical treatment necessitated by the workplace event or exposure.
29 C.F.R. § 1904.5(b)(4).
- Work-related injuries or illnesses can occur while employees are working from home if “the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.” 29 C.F.R. § 1904.5(b)(4).
- New Cases. An injury or illness is considered to be a “new case” if:
- The employee has not previously experienced an injury or illness of the same type that affects the same part of the body; o
- The employee previously experienced the same injury or illness but had recovered completely (all signs and symptoms had disappeared) and an event or exposure in the work environment caused the signs or symptoms to reappear.
29 C.F.R. § 1904.6.
- General Recording Criteria. The following work-related injuries and illnesses meet OSHA’s general recording criteria and must be recorded on the OSHA Log:
- Loss of consciousness
- Days away from work
- Restricted work activity or job transfer
- Medical treatment beyond first aid
- A significant injury or illness diagnosed by a physician or other licensed health care professional, such as cases of cancer, chronic irreversible disease, a fractured or cracked bone, or a punctured eardrum that are work-related.
29 C.F.R. § 1904.7.
- An employee’s case of COVID-19 must be recorded on the OSHA Log if
- The employee tests positive for COVID-19;
- The case of COVID-19 is work-related; and
- The case involves one or more of the above-listed general recording criteria.
- An employee’s case of COVID-19 must be recorded on the OSHA Log if
See U.S. Dep’t of Labor, OSHA, Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (Apr. 10, 2020).
- However, the OSHA Recordkeeping Requirements for COVID-19 cases will only be enforced against healthcare employers, emergency response organizations, correctional institutions, and employers with reasonably available, objective evidence of a possible work-related cases of COVID-19. Id.
- Preparing and Maintaining the OSHA Log.
- Employers are required to record work-related injuries or illnesses on the OSHA Log within 7 calendar days of receiving information that a recordable injury or illness occurred. 29 C.F.R. § 1904.29.
- Recording Employee Names and Privacy Concern Cases.
- The OSHA Log requires employers to record the employee’s name and job title, the date of the injury or onset of the illness, and the location where the event or exposure occurred.
- Employers do not have to record the employee’s name on the OSHA Log if the injury or illness constitutes a “privacy concern case.”
- For privacy concern cases, employers should enter “privacy case” in the space where the employee’s name would normally be entered.
- Employers must keep a separate, confidential list of the case numbers and employee names for all privacy concern cases.
29 C.F.R. § 1904.29.
- The following injuries and illnesses are privacy concern cases:
- An injury or illness to an intimate body part or the reproductive system;
- An injury or illness resulting from a sexual assault;
- Mental illnesses;
- HIV infection, hepatitis, or tuberculosis;
- Needlestick injuries and cuts from sharp objects that are contaminated with another person's blood or other potentially infectious material; and
- Other illnesses, if the employee voluntarily requests that his or her name not be entered on the log.
29 C.F.R. § 1904.29.
- Employers may not classify any other cases as privacy concern cases and may not remove the names of employees or any other information from the OSHA Log. 29 C.F.R. §§ 1904.29, 1904.35.
The OSHA Injury and Illness Incident Report
- An OSHA Form 301 - Injury and Illness Incident Report (the “OSHA Form 301”) must be prepared and maintained for each work-related injury or illness that employers must record pursuant to the OSHA Recordkeeping Requirements. 29 C.F.R. § 1904.29.
- Employers are required to complete an OSHA Form 301 for each recordable injury or illness within 7 calendar days of receiving information that a recordable injury or illness occurred. 29 C.F.R. § 1904.29.
The OSHA Summary
- An OSHA Form 300A - Summary of Work-Related Injuries and Illnesses (the “OSHA Summary”) is an annual summary of all work-related injuries and illnesses.
- At the end of each calendar year, employers must review and finalize their OSHA Log and use the OSHA Log to create an OSHA Summary. 29 C.F.R. § 1904.32.
- Employers must post the OSHA Summary by February 1 of the following year and keep the posting in place until April 30. 29 C.F.R. § 1904.32.
- Employers with an establishment of 250 of more employees and employers with an establishment of 20 or more employees, but fewer than 250 employees, must submit their OSHA Summary online to the Occupational Safety and Health Administration by March 2 of the year after the calendar year covered by the OSHA Summary. 29 C.F.R. § 1904.41.
Reporting Deaths and Other Severe Incidents to OSHA
- All employers, regardless of size or industry, including those not subject to the OSHA Recordkeeping Requirements, must report:
- the death of any employee as a result of a work-related incident to the Occupational Safety and Health Administration within 8 hours of learning of the employee’s death;
- the in-patient hospitalization of an employee as a result of a work-related incident to the Occupational Safety and Health Administration within 24 hours of learning of the employee’s in-patient hospitalization; and
- an employee’s amputation or loss of an eye as a result of a work-related incident to the Occupational Safety and Health Administration within 24 hours of learning of the incident.
29 C.F.R. § 1904.39.
- Reports of deaths, in-patient hospitalizations, amputations, and losses of an eye may be made to the Occupational Safety and Health Administration by using one of the following methods:
- Calling or reporting in person to the nearest OSHA Area Office
- Calling the OSHA 24-Hour Hotline at 1-800-321-OSHA (1-800-321-6742)
- Filing an online report at https://www.osha.gov/pls/ser/serform.html
See 29 C.F.R. § 1904.39.
Application to COVID-19 Cases
- Employers subject to enforcement of the OSHA Recordkeeping Requirements must record an employee’s case of COVID-19, if the answer to all of the following questions is yes:
- Did the employee test positive for COVID-19?
- Was the employee’s case of COVID-19 work-related?
- Did the employee experience death, loss of consciousness, medical treatment beyond first aid, days absent from work, restricted work activity, job transfer, or significant injury or illness diagnosed by a healthcare professional?
- For each recordable case of COVID-19, employers should enter the appropriate information on the OSHA Log and complete an OSHA Form 301
- Employers should also include all recorded cases of COVID-19 in the employer’s OSHA Summary at the end of the calendar year.
- All employers, regardless of size or industry, must report an employee’s case of COVID-19 to the Occupational Safety and Health Administration if:
- the employee dies as a result of a work-related case of COVID-19;
- the employee undergoes in-patient hospitalization as a result of a work-related case of COVID-19; or
- the employee suffers an amputation or loss of an eye as a result of a work-related case of COVID-19.
These materials were prepared by Putney, Twombly, Hall & Hirson LLP prior to their combination with Bond, Schoeneck & King for informational purposes only and are not intended as legal advice or advertisement of legal services. Transmission of the information is not confidential and is not intended to create an attorney-client relationship or an attorney-client privileged communication. You should not act upon any of the information contained in these materials without seeking the advice of your own professional legal counsel.