OSHA Provides Recordkeeping Guidance To Employers For COVID-19 Cases

The Department of Labor’s Occupational Safety and Health Administration issued guidance for enforcing OSHA’s recordkeeping requirements for COVID-19 cases. OSHA recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.

When Does Your Recordkeeping Obligation Kick In?

According to the guidance, COVID-19 is a recordable illness, and must be recorded on an employer’s OSHA 300 log if:

1. The case is a confirmed case of COVID-19 (meaning an individual has at least one respiratory specimen that tests positive for SARS-CoV-2, the virus that causes COVID-19);
2. The case is work-related (as defined by 29 CFR § 1904.5); and
3. The case involves one or more of the general recording criteria as outlined by OSHA: if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond “first aid,” or loss of consciousness (OSHA provides a specific and complete definition of “first aid” in 29 CFR § 1904.7(b)(5)(ii)).

Limited Enforcement Waiver

Recognizing the difficulty in determining whether COVID-19 was contracted while on the job, OSHA will not enforce its recordkeeping requirements that would require employers in areas where there is ongoing community transmission to make work-relatedness determinations for COVID-19 cases, except where:

1. There is objective evidence that a COVID-19 case may be work-related; and
2. The evidence was reasonably available to the employers.

This waiver of enforcement does not apply to employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions in areas where there is ongoing community transmission.  These employers must continue to make work-relatedness determinations. 

This new guidance provides employers with one fewer issue to worry about in their response efforts to an employee with a confirmed case of COVID-19. Employers should continue to focus on minimizing the risk of transmission in the workplace.  

New OSHA Reporting Requirements Now In Effect

As 2015 begins, the Occupational Safety and Health Administration (OSHA) is sharpening its emphasis on inspecting and citing employers who violate its recordkeeping standard. This takes on greater importance because of the changes and new reporting requirements effective on January 1, 2015.

 

New OSHA Reporting Rules
Under the new rules, all employers are now required to contact OSHA within 24 hours following an occurrence of any in-patient hospitalizations, amputations, or loss of an eye, as well as the current requirement to contact OSHA within eight hours following a fatality. For reporting compliance, employers have three options when contacting OSHA: 1) call the nearest area office; 2) call OSHA’s 24-hour hotline 1-800-321-OSHA(6742); or 3) report online.

 

New Recordkeeping And Posting Requirements
Many new categories of employers must now maintain and post OSHA injury and illness records going forward. Employers who were already covered must complete and post their 2014 annual summary by February 1, 2015 and keep it posted until April 30, 2015. Employers must utilize the annual summary form (form 300A) to comply with the posting requirements. Even if you have no recordable injury or illness, you must still complete your 300 logs and post the 300A summary.

 

Below are some key details that are frequently misunderstood or overlooked which can lead to OSHA citations.

 

Executive Certification 
OSHA’s recordkeeping standard requires a certification of the 300A summary by a company executive. Four specific management officials may be considered “company executives” for purposes of certifying the 300A summary: 1) an owner of the company; 2) an officer of the corporation; 3) the highest-ranking company official working at the location; or 4) the immediate supervisor of the highest-ranking company official working at the location. This official must certify that he or she has reviewed the OSHA 300 logs and related records, and reasonably believes, based on knowledge of the process underlying the development of the data, that the posted summary is accurate and complete.

 

OSHA describes this requirement as imposing “senior management accountability” for the integrity and accuracy of the reported data. Human resources managers and safety directors normally cannot sign the OSHA 300A summary unless they are officers of the company.

 

Number Of Employees And Hours Worked
The annual summary requires employers to include a calculation of the annual average number of employees covered by the log and the total hours worked by all covered employees. The purpose of this requirement is to help employers compare the relative frequency of significant occupational injuries and illnesses at their workplace as compared to other establishments.

 

Posting Process 
The 300A summary must be posted in each establishment in a conspicuous place or places where notices to employees are customarily posted. You are under a duty to ensure that the posted annual summary is not altered, defaced or obscured during the entire posting period.

 

Those employers who maintain these records in electronic form should still retain the signed posted summary after the February 1 to April 30 posting period, to prove that it was properly signed.

 

You should provide copies of the 300A summary to any employee who may not see the posted summary because they do not report to a fixed location on a regular basis. Even where an establishment has had no recordable injuries or illnesses, you must still post the 300A summary with zeros in the appropriate lines and certified by a company executive.

 

Record Review
Before the annual summary is prepared, the recordkeeping rule imposes an express duty to review the log (form 300) to verify that entries are complete and accurate. Employers must review the records as “extensively as necessary” to ensure accuracy.

 

OSHA scrutinizes the forms 301, 300 and 300A for even minor errors in descriptions and boxes checked. Take time to review the forms for technical errors as well as to review accident reports, first aid logs and other related materials to ensure that all recordable incidents have been included and that records are consistent. Employers have a duty to update and maintain records for five years plus the current year and provide them upon request for inspection by OSHA investigators.

 

Newly Covered Employers
Finally, all employers who have previously been partially exempt from OSHA recordkeeping requirements and were not required to maintain the form 300, should review the updated industry exemption list to see if they are now covered. Under the new rule, 25 industries that were previously exempt are not, and must now maintain the OSHA 300 logs and other required documentations.