Employers are required to log COVID-19 exposures and outbreaks on OSHA Form 300 if:
The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control (CDC);
The case is work-related, as defined by 29 CFR § 1904.5;
Work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness
Work-related is presumed for exposures occurring in the work environment
The case involves one or more of the recording criteria set forth in 29 CFR § 1904.7
Death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or significant illness or injury diagnosed by a physician.
Employers must report fatalities to OSHA within 8 hours and in-patient hospitalizations within 24 hours.
In regards to inspections, OSHA’s Interim Enforcement Guidance will focus inspections on facilities with high risk job categories (as identified in the OSHA COVID-19 guidance) and those experiencing outbreaks. Inspections will be prioritized for fatalities and imminent danger exposures with particular attention given to healthcare organizations and first responders who are exposed to COVID-19 without PPE. Otherwise, OSHA will perform investigations through Rapid Response Investigation (RRI), telephone calls to the employer and document requests. OSHA will initiate an RRI for Employer-reported hospitalizations. Employers must respond to written requests within 5 days after receiving a request and have 15 days to provide records. We recommend you seek advice and counsel before providing any response to an RRI or other OSHA request.
OSHA’s General Duty Standard, Section 5(a)(1) requires employers to "provide their employees with a workplace of employment free from recognized hazards that are causing or likely to cause death or serious physical harm.” OSHA’s Interim Enforcement Response Plan outlines what OSHA’s inspectors will consider in determining if a workplace has properly protected its workers:
Inspectors will determine if an Employer has implemented the measures recommended in OSHA’s COVID-19 Guidance for Employers/Workplaces.
Inspectors will also evaluate if Employers are following the CDC guidelines for workplaces.
Inspectors will consider if employers are issuing the proper PPE protections for employees based on its various PPE standards.
Inspectors will also inquire as to what protections are being provided to those employees who have been identified by the CDC as at risk for developing severe complications from COVID-19. However, the Equal Employment Opportunity Commission (EEOC) specifically advised employers against inquiring into any employee’s underlying health conditions in its Pandemic Guidance; doing so will violate the Americans with Disabilities Act (ADA). Therefore, we recommend employers include in their COVID-19 Policy or Notices a list of the risk factors and ask any employee who may have one of the factors to contact human resources for additional PPE or protections so as to comply with the OSHA standard but not violate the ADA.
Those categories are:
Being 65 years of age or older;
Being on immunosuppressive drug therapy or otherwise being immunosuppressed;
Having a history of smoking; or
Having any of the following medical conditions: cardiovascular disease, asthma or other pulmonary disease, renal failure, liver disease, cancer, or diabetes.
OSHA acknowledges employers not in healthcare or emergency response may have difficulty making a determination as to exposures occurring at work and will not enforce § 1904.5 unless:
There is objective evidence that a COVID-19 case is work-related, for example close working conditions without explanation, or
Situations where the employer knew or should have known of risk.
OSHA will also exercise discretion when an employer can show good faith efforts to comply with its COVID-19 safety and health protections.
If you have questions about this topic or other employment law matters, please contact Chris or the HSB Employment Law practice team.
For additional resources on COVID-19, please access HSB’s resource page.