by Robert Sanders and Avi Meyerstein

Following our written letter to OSHA urging it to announce a presumption that COVID-19 cases are not recordable incidents, OSHA did just that.  Late on Friday, OSHA announced that COVID-19 will not be a recordable injury in most areas and industries.

OSHA’s interim guidance says that – except for employers in the healthcare industry, emergency response organizations, and correctional institutions – employers in areas where there is ongoing community transmission of COVID-19 will not be required to treat COVID-19 cases as recordable incidents for OSHA record keeping purposes unless there is objective evidence, reasonably available to the employer, that a COVID-19 case may be work-related.

When is there objective evidence that a case is work-related? Helpfully, the guidance provides examples. A case might be work-related based on objective evidence when a number of workers who work closely together all develop COVID-19 without an alternative explanation. The case would be recordable if such evidence was reasonably available to the employer, such as if employees provided the information to the employer or when the employer learns of the related cases in the ordinary course of business.

The new presumption is not for everyone, though, particularly those in a few high-exposure industries. Employers in healthcare, emergency response, and correctional institutions cannot benefit from the new presumption. They will still have to conduct work-relatedness evaluations as normal.

According to OSHA, “This enforcement policy will help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.” On March 18, 2020, after fielding many client questions about this issue, a dozen Husch Blackwell attorneys wrote to OSHA seeking such a presumption for these very reasons.