by Bill Taylor, CSP
Principal Safety Scientist

Under normal circumstances, OSHA would require employers to determine work-relatedness in order to decide if an injury or illness should be recorded on the OSHA 300 log. Making that determination was not, in most cases, very difficult. OSHA clearly states in the recordkeeping standard at 1904.5(a), that employers must “consider an injury or illness to be 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. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in §1904.5(b)(2) specifically applies.” This is known as geographic presumption.

In the case of COVID-19, determining if the exposure occurred in the work environment can, in most situations, be near impossible. For example, a clerk working checkout at a grocery store will face many customers throughout the day, any of whom could be carrying the virus. But it is unlikely he or she would know if any of those customers were contaminated. And even if the clerk was aware a customer was carrying the virus, there is no way of knowing if any potential exposure resulted in contraction. Did the clerk contract the virus from a customer at work? Was it picked up from a package of toilet paper he or she bought before leaving the store? (This would be an exception to geographic presumption) What about the pump handle the clerk touched to fill up on gas on the way home? The clerk or fellow customer inside the convenience store when he or she went inside to pay for the gas? Were the germs attached to the gum the clerk bought? In other words, the possibilities are so pervasive that it may not be possible to know for sure where the exposure occurred. A recordkeeper’s nightmare!

On Friday April 10, 2020, OSHA issued an enforcement memo intended to relieve employers other than those involved in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions from the responsibility of recording cases of COVID-19 on their injury and illness Log. The memo can be found here.

Employers outside these identified industries are not required to record COVID-19 cases unless:

  1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and

  2. The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.

If you should have questions concerning recording of COVID-19 or other injuries and illnesses, feel free to contact Bill Taylor, CSP, Principal Safety Scientist with The EI Group, Inc., at (919) 593-2145 or [email protected].