April 10, 2020 – Today, the Occupational Safety and Health Administration issued an enforcement memorandum to its Regional Administrators and Compliance Officers providing interim guidance for the recording of occupational illnesses, specifically cases of Coronavirus Disease 2019 (COVID-19).  While the stated purpose of the memo was to “provide certainty to the regulated community” about whether a diagnosis of COVID-19 is an OSHA-recordable illness, whether it succeeded in that purpose is not quite as clear.

As a starting proposition, the memorandum provides that COVID-19 is a recordable illness, and “employers are responsible for recording” such cases if (1) the case is a confirmed case of COVID-19, (2) the case is work-related as defined by (OSHA regulation) 29 CFR 1904.5, and (3) the case involves one or more of the general recording criteria set forth in 29 CFR 1904.7.

The former regulation states that “an injury or illness [is considered] 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.”  The latter provision states that for an illness to meet the “general recording criteria,” it must result in “death, days away from work, restricted work… or medical treatment beyond first aid,” criteria which would almost certainly be met in most, if not all, cases of diagnosed COVID-19.

The newly issued memorandum proceeds to draw a significant distinction between employers of workers in the healthcare industry, emergency response organizations and correctional institutions, and employers in all other industries. Employers in the former sector are directed to “continue to make work-relatedness determinations pursuant to 29 CFR 1904,” which presumably will lead to large-scale determinations of COVID-19 exposures being work-related, due to the nature of those workplaces. OSHA, however, will “not enforce 29 CFR 1904 to require other employers to make the same work-relatedness determinations” unless there is “objective evidence that a COVID-19 case may be work related,” and “the evidence was reasonably available to the employer.”

While this dichotomy may at first reading seem to create a presumption that employers other than those in the healthcare, emergency response and correctional industries do not have to treat COVID-19 as an OSHA-recordable illness, the problem with relying too heavily on that presumption is the rather vague standard of “objective evidence.” In fact, the newly-issued memorandum sets forth only one example of such evidence: “this could include, for example, a number of cases developing among workers who work closely together without an alternative explanation….” Nevertheless, in the absence of any evidence at all of the virus being contracted while at work, OSHA’s memorandum does seem to relieve employers outside of the three previously-listed industries of having to make a determination of work-relatedness, and the ensuing obligation to record the illness for OSHA recordkeeping purposes.

It will be interesting to see if the reasoning set forth in OSHA’s newly-issued memorandum will be adopted in the interpretation of various states’ Worker’s Compensation laws. Stay tuned for further details. The link to the OSHA memorandum is:


Because legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.

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