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U.S. Department of Labor Issues Enforcement Guidance on Recording Cases of COVID-19

April 20, 2020

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) recently issued a memo addressing OSHA’s recordkeeping requirements for employers regarding recording cases of COVID-19.

Effective immediately, OSHA’s recordkeeping requirements mandate that COVID-19 is a recordable illness, and employers with more than 10 employees must record cases of COVID-19 if the case:

  • Is confirmed as a COVID-19 illness;
  • Is work-related; and
  • Involves one or more of the general recording criteria, such as medical treatment beyond first aid or days away from work.

This is in addition to the general reporting requirements for covered employers to report any work-related incident that results in a fatality, the in-patient hospitalization of one or more employees, an employee amputation, or an employee loss of an eye.

Notably, the DOL’s memo makes clear that OSHA, with a few exceptions, is suspending enforcement of its requirement that employers determine whether an employee’s case of COVID-19 is work-related. This suspension is intended to help employers focus on implementing good hygiene practices in the workplace and otherwise mitigating COVID-19’s effects, rather than making difficult work-relatedness decisions in circumstances where there is also community transmission.

Work-relatedness determinations still must be made, however, in healthcare institutions, emergency response organizations (such as emergency medical, firefighting, and law enforcement), and correctional institutions. Additionally, employers must continue to make a work-related determination where: (1) there is objective evidence that a COVID-19 case may be work-related; and (2) the evidence was reasonably available to the employer. The memo states that objective evidence “could include, for example, a number of cases developing among workers who work closely together without an alternative explanation.”

A link to the DOL’s Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) can be found here.

If you have any questions, please contact a Richards Layton Labor and Employment attorney.

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