On May 19, 2020, OSHA issued an Enforcement Guidance on recording cases of alleged Coronavirus illnesses in the workplace. Given the difficulty of establishing the causation of many alleged work-related illnesses, and these unprecedented times, this Guidance should prove helpful.

According to OSHA, COVID-19 is a recordable illness if:

1. The case is a confirmed case of COVID-19, as defined by the CDC 9 (i.e., the employee has tested positive);
2. The case is work-related (i.e., an event or exposure in the work environment either caused or contributed to the condition, or significantly aggravated a preexisting condition); and,
3. The case involves one or more of the recordkeeping criteria (i.e., results in death, lost time, restricted duty or medical treatment other than first aid).

Recognizing the difficulty of determining whether a positive COVID-19 test is work-related, OSHA will exercise enforcement discretion when reviewing an employer’s decisions on this issue, considering:

1. The reasonableness of the employer’s investigation into the issue. It will be sufficient if the employer asks the employee how he believes he contracted the illness; what work and outside activities may have caused it; and, reviews the employee’s work exposure, including any other reported cases in the work environment.
2. The available evidence. What information was reasonably available at the time the determination was made, and whether any other information became subsequently available.
3. The evidence that the illness was contracted at work. Evidence of work-relatedness may include, in the absence of an alternative explanation, whether employees work close together; lengthy, close exposure to a co-worker or customer who tested positive; and, frequent, close exposure to the general public in a locality with ongoing community transmission. Evidence that the illness may not be work-related include being the sole person to test positive in the vicinity, with no frequent contact with the public; close and frequent contact with someone outside of the workplace who has tested positive during a period when they were likely infectious.

Hopefully, employers are taking heed of all of the OSHA guidance on preventing the spread of the virus in the workplace and will never need to consider any of the above.

For more information on OSHA recommendations for preventing the spread of COVID-19 in the work environment and other helpful information, see https://www.osha.gov/SLTC/covid-19/.

If you have any questions regarding OSHA recordkeeping and COVID-19, preventing the spread of COVID-19 in the workplace or any other employment issues related to COVID-19, feel free to contact Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.