On May 19, 2020 OSHA issued an Enforcement Memorandum providing updated interim guidance to Compliance Safety and Health Officers (CSHOs) regarding enforcing the requirements for recording of COVID-19 as an occupational illnesses.

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases, if:

 There is a confirmed case as defined by the Centers for Disease Control and Prevention (CDC);
 The case is work-related as defined by 29 CFR § 1904.5; and
 The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

OSHA recognized that the nature of the virus and the strong potential for community spread makes it difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace. Therefore, in order to provide some sort of certainty to employers and workers, OSHA issued temporary guidelines in effect until further notice, through which an employer can make a reasonable determination that the illness is work-related.

CSHOs are advised to review the following considerations:

The reasonableness of the employer’s investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. This review should take into account whether there are any other workers who contracted COVID-19.

The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee’s COVID-19 illness, then that information should be taken into account as well.

The evidence that a COVID-19 illness was contracted at work. CSHOs should take into account all reasonably available evidence to determine whether an employer has complied with its recording obligation. This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:

COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.

An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.

An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.

An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

Due weight to any should be given to evidence of causation provided by medical providers, public health authorities, or the employee herself.

Employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations; they need only report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye. A list of low hazard industries can be found here.