The short answer is . . . YES.
However, OSHA recently issued additional guidance for Compliance Safety and Health Officers (CSHOs) that addresses the obvious flaw that many saw from the start when we first heard that COVID-19 is an OSHA recordable illness – how can you prove someone contracted the virus at work and not elsewhere?
OSHA’s 1904 Standard requires employers to keep records of work-related injuries and illnesses. A few years ago, OSHA updated their injury and illness recordkeeping rule to require annual online reporting for certain industries. In April as the nation reeled under the consequences of the spreading virus and businesses struggled to put measures in place that would allow them to remain open and their employees and the public safe, OSHA announced that COVID-19 is a recordable illness. This guidance required certain high-risk industries to continue to make work-related determinations for COVID-19 cases, but other industries were exempt from determining work-relatedness, unless there was obvious evidence that the employee contracted the virus at work.
On May 19th, OSHA issued additional guidance that rescinds the April enforcement memorandum and takes effect on May 26th. Employers must record COVID-19 cases on their OSHA 300 Logs if the case:
- is a confirmed case of COVID-19 as defined by the CDC,
- is work-related, and
- involves one or more of the general recording criteria: medical treatment beyond first aid, lost work days or restricted duty, or loss of consciousness or death.
The new guidance for CSHOs also provides details that employers can use in determining work-relatedness. Employers should look into the following evidence in making a determination:
- Have several cases developed among employees that work closely together?
- Was the virus contracted after the employee was in close contact with a customer or coworker who has a confirmed case?
- Does the employee’s job duties require frequent close contact with the public in an area with ongoing community transmission?
If the answer to any of these questions is yes and there is no other likely explanation, then it can be assumed that the illness is work-related and should be logged if it meets the other two criteria above.
The employer should conduct a reasonable investigation into how the employee contracted the virus. This includes:
- Asking the employee how they believe they contracted the illness;
- Discussing with the employee, while respecting their privacy, any work or out-of-work activities that may have caused them to contract COVID-19; and
- Reviewing the employees work environment for other potential coronavirus exposures.
The determination of work-relatedness should be based on evidence available at the time, but can be changed if additional evidence comes to light.
If after conducting a reasonable investigation, it’s still difficult to determine work-relatedness, then the employer is not required to log the illness on the OSHA 300 Form. It’s important to note however, that if the OSHA Compliance Officer is conducting an investigation of your workplace, you’ll need to be able to prove that you made a reasonable effort to obtain the evidence needed to make the work-related determination. To that end, keeping thorough and accurate records is vital for your business.
Compliance Consultants, Inc. can help you and your business with determining if an injury is recordable/reportable, completing the necessary logs, and submitting the data to OSHA. Specifically, the 300A Summary Form must be posted in the workplace from Feb 1st through April 30th each year, for the previous year. Plus, these records must be kept for five years.
For more information on how Compliance Consultants, Inc. can help you properly track and report workplace incidences, and now COVID-19 illnesses, please contact:
CCI at email@example.com or (610) 237 – 7100
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