Labor & Employment E-lert: Many Employers Fail to Report COVID-19 Cases on Their OSHA 300 Logs of Work-Related Injuries and Illnesses

By: William H. Andrews, Of Counsel

Work-related COVID-19 illness is a recordable event, but many employers are not recording COVID-19 cases in compliance with the Occupational Safety and Health Administration's (OSHA) 300 log book requirements that may be attributable to the workplace. Employers are responsible for recording cases of COVID-19, if (1) the case is a confirmed case of COVID-19, as defined by the Center for Disease Control and Prevention; (2) the case is work-related as defined by 29 C.F.R. §1904.5(3); and (3) the case involves one or more of the general recording criteria set forth in 29 C.F.R. §1904.7. Any COVID-19 OSHA related death must be reported to the closest OSHA office within eight (8) days of the death. To provide direction to employers regarding the recording of COVID-19 work-related cases, OSHA issued a memorandum entitled "Enforcement Guidance for Recording Cases of Corona Virus Disease 2019 (COVID-19)," (the "Recording Guidance") which is summarized below.

Because of the difficulty of determining work-relatedness, OSHA is exercising enforcement discretion to assess employers' efforts in making work-related determinations. According to OSHA's Recording Guidance, the OSHA's Compliance Safety and Health Officer (CSHO) or the employer's Human Resources personnel should apply the following considerations when determining whether to log a COVID-19 illness in the employer's OSHA 300 log and whether an employer has met its documentation obligations:

  • 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 the employee's 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 the employee is the only worker to contract COVID-19 in the employee's vicinity and the employee's 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 the employee, 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.

OSHA has several level of violations, including "Serious" and "Other Than Serious." The penalty for a Serious violation is $13,494 per violation, meaning that for every work-related COVID-19 case not recorded, each incident could result in a fine of $13,494. Other Than Serious violations can result in no penalty, or a substantially reduced penalty, but would require the posting of a notice advising employees of the recoding violation. At this time, whether OSHA will consider the failure to log work-related COVID-19 cases on the OSHA 300 logs as Serious or Other Than Serious is unknown, but as cases develop, we will provide additional information. Because of the potential liability for failure to list the work-related COVID-19 on the OSHA 300 log, we suggest when there is some doubt about whether the illness should be recorded or not, that the illness be recorded.