In October , the Office of Safety and Health Administration (OSHA) announced that since the start of the COVID-19 pandemic, it has cited 144 establishments for COVID-19-related violations, totaling over two million dollars in penalties. These citations included violations for failure to report injuries, illnesses, or fatalities, and failure to record injuries or illness. OSHA’s recent enforcement activity serves as a reminder to employers across all industries of the obligation to record work-related COVID-19-related infections, hospitalizations and fatalities. An employer’s failure to comply with OSHA’s recordkeeping and reporting requirements could result in significant penalties.

Recordkeeping obligations

Pursuant to OSHA guidance, COVID-19 is a recordable illness. Therefore, in accordance with OSHA’s recordkeeping requirements, all covered employers must record COVID-19 cases on their OSHA 300 log if:

• the case is a confirmed case of COVID-19, per CDC guidelines;
• the case is work-related, per relevant OSHA regulations; and
• the case involves at least one of the general recording criteria, per relevant OSHA regulations (e.g., fatality, loss of consciousness, days away from work, restricted work, transfer to another job, medical treatment beyond first aid).

Reporting obligations

Employers must also promptly report to OSHA certain COVID-19-related hospitalizations and fatalities.

Reporting hospitalizations

All employers must report any in-patient hospitalization of an employee resulting from a “work-related incident” within 24 hours. In the context of COVID-19, OSHA has defined a “work-related incident” as “an exposure to SARS-CoV-2 in the workplace.” To be reportable, a COVID-19-related in-patient hospitalization must occur within 24 hours of the employee’s exposure to COVID-19 in the workplace. The employer must report the hospitalization within 24 hours of knowing that the employee has been hospitalized and that the reason for the hospitalization was a work-related case of COVID-19. According to OSHA’s recently released COVID-19 FAQs, even if an employer learns that an employee was hospitalized within 24 hours of a work-related incident, and later determines that the cause of the hospitalization was a work-related case of COVID-19, the case must be reported within 24 hours of that determination.

Reporting fatalities

Employers must report a “work-related” fatality to OSHA within eight (8) hours of the fatality or of learning the fatality was “work-related,” but only if the fatality occurs within thirty (30) days of a “work-related incident.” Because exposure to COVID-19 in the workplace is a “work-related incident,” if an employee dies from COVID-19 within thirty (30) days of being exposed in the workplace, the employer must report that fatality to OSHA within eight (8) hours of knowing both that the employee has died and that the cause of death was a work-related case of COVID-19. According to OSHA’s COVID-19 FAQs, even if an employer learns that an employee died within thirty (30) days of a work-related incident, and later determines that the cause of the death was a work-related case of COVID-19, the case must be reported within eight (8) hours of that determination.

COVID-19: Determining “work-related”

An injury or illness is work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. When making work-relatedness determinations, an employer must conduct “reasonable and good faith” inquiries into whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19. When evaluating an employer’s efforts to comply with this obligation, OSHA look to the following:

The reasonableness of the employer’s investigation into work-relatedness.

Employers generally are not expected to undertake extensive medical inquiries. Rather, in most cases, while respecting employee privacy an employer should:

• Ask the employee how the employee believes he or she contracted COVID-19;
• Discuss with the employee his or her work and out-of-work activities; and
• Review the employee’s work environment for potential COVID-19 exposure, including other instances of employees in that environment who have contracted the COVID-19 illness.
• The reasonably available evidence that was readily available to the employer.
• The reasonably available evidence that a COVID-19 illness was contracted at work.

Certain factors may weigh in favor of a determination that an employee’s COVID-19 illness is work-related, including instances for which there is no alternative explanation:

• Whether several cases develop among employees who work closely together.
• The employee contracts COVID-19 shortly after lengthy, close exposure to a particular customer or co-worker who has a confirmed case of COVID-19.
• The employee’s job duties include having frequent, close contact to the general public in a locality with ongoing community transmission.

Other factors may weigh against a determination that an employee’s COVID-19 illness is work-related, including:

• The employee is the only employee to contract COVID-19 in his or her vicinity, and the employee’s job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
• The employee closely and frequently associates with someone outside of the workplace (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a co-worker; and (3) exposes the employee during the period in which the individual is likely infectious.
• If, after a reasonable and good faith inquiry, the employer cannot determine whether a particular case of COVID-19 was work-related, the employer does not need to record the COVID-19 illness.

In light of OSHA’s recent enforcement activity, including citations at numerous establishments for failure to comply with the relevant reporting and recordkeeping requirements, employers may wish to familiarize themselves with OSHA’s guidance on recording certain work-related COVID-19 infections and reporting certain work-related COVID-19-related hospitalizations and fatalities. Moreover, employers should remain cognizant of their obligation to reasonably investigate whether a case of COVID-19 is work-related. Employers with questions about their OSHA recordkeeping and reporting obligations may want to consult competent counsel.

Robinson+Cole Partner Megan E. Baroni and Counsel Jonathan H. Schaefer are members of the firm's Environmental, Energy + Telecommunications Group, and Partner Matthew T. Miklave and Associate Emily A. Zaklukiewicz are members of the Labor, Employment, Benefits + Immigration Group.