OSHA Updates and Supersedes April 2020 COVID-19 Recordkeeping Requirements

July 2, 2020

By: Thomas M. Cunningham

With little fanfare, the Department of Labor’s Occupational and Safety Health Administration (OSHA) has updated and superseded its April 2020 guidance regarding employers’ record-keeping requirements for COVID-19 cases in the workplace. OSHA recently executed an about-face from its April 2020 guidance and is now mandating that all employers who are otherwise required to maintain OSHA 300 Logs investigate and attempt to determine whether COVID-19 cases among their employees are work-related. Such a determination requires they be included on the OSHA 300 Logs.


OSHA has made clear that it considers COVID-19 to be a workplace illness that employers must record on their OSHA 300 logs if all other recording criteria are met, which includes a determination by the employer that the case was “work-related.” As we reported in an earlier article, as a result of the exponential increase in community spread of COVID-19, OSHA announced in April, 2020 that until it notified employers otherwise, it would not enforce its recording requirements to require employers (except those in the health care industry, emergency response organizations, or correctional institutions) to make work-relatedness determinations of COVID-19 cases, with certain limited exceptions. The reason: OSHA wanted employers to spend their time and resources on taking steps to provide a safe workplace, and not in investigating whether a particular COVID-19 case was work-related.


Now, however, OSHA has superseded that guidance and announced employers must record COVID-19 cases in their OSHA 300 log if all recording conditions are satisfied. Therefore, in order to satisfy their compliance obligations, employers must undertake work-relatedness determinations. OSHA made clear the reason for this switch in enforcement philosophy: “As the virus's spread now slows in certain areas of the country, states are taking steps to reopen their economies and workers are returning to their workplaces. All these facts—incidence, adaptation, and the return of the workforce—indicate that employers should be taking action to determine whether employee COVID-19 illnesses are work-related and thus recordable.”


OSHA acknowledges that determining the work-relatedness of COVID-19 cases is difficult. OSHA will exercise its enforcement discretion to determine if employers have complied with this obligation by assessing the following factors:


  1. The reasonableness of the employer’s investigation into work-relatedness. Employers do not have to make extensive medical inquiries to determine the work-relatedness of a COVID-19 case. Instead, OSHA recommends taking the following steps in a work-relatedness inquiry:


    • Ask the employee how they believe they have contracted the virus.


    • Discuss with the employee any work or out-of-work activities that may have led to the illness. Personal privacy issues must still be respected.


    • Review the employee’s work environment for potential exposure to the virus. This review should take into account if other workers in that environment have contracted COVID-19.


  1. The evidence available to the employer. The employer should consider all evidence “reasonably available” at the time the work-relatedness determination is made. Although “reasonably available” is undefined, at its base, the term encompasses what the employer can learn from speaking to the affected employee and evaluating the employee’s work environment.


  1. Sources of exposure. In addition to taking into account all reasonably available evidence, OSHA instructs the employer to consider possible sources of exposure in the workplace. OSHA observes that an employee’s COVID-19 illness is probably work-related if: (a) Several cases develop among co-workers who work closely together; or (b) The case developed after lengthy, close exposure to a customer or workplace visitor who also has a confirmed COVID-19 case; or (c) The employee’s work brings them into close and frequent contact with the public in a locality with ongoing community transmission.  Of course, the employer should always consider if there is an alternative explanation, or more than one source of exposure.


An employer who makes a reasonable, good faith inquiry in accordance with these factors and still cannot determine whether it is more likely than not that exposure at the workplace caused the COVID-19 case does not need to record the illness. Nor should an employer simply record every case of COVID-19 as work-related without making a good faith inquiry. Such a practice  could violate OSHA’s recordkeeping requirements (for creating and maintaining unsubstantiated or  incorrect records). Rather, the best practice to ensure good recordkeeping is to follow the steps set forth in the guidance and conduct a reasonable work-relatedness inquiry, and record the process so that there is evidence of the same.  


The updated standard went into effect on May 26, 2020, and was referenced in OSHA’s recently released Guidance on Returning to Work issued June 17, 2020. For more information on OSHA’s Return to Work Guidance, see the companion article here.


Please contact your Nyemaster Goode attorney for any questions regarding OSHA’s COVID-19 record-keeping requirements, workplace safety enforcement guidance, or for assistance with labor and employment issues in general.


The author gratefully acknowledges the research assistance of Eve Durand, a rising second-year student at Drake University Law School, and a summer associate at Nyemaster Goode, P.C., in the preparation of this article.