COVID-19 and OSHA Injury and Illness Reports

It’s that time of year again – time to complete your Summary Report of Work-Related Injuries and Illnesses, also known as the Occupational Safety and Health Administration (OSHA) Form 300A.

OSHA Form 300A is a summary of an employer’s work-related injuries and illnesses for the prior calendar year. This includes the number of cases, days away from work, and general types of illnesses or injuries. It is prepared using information recorded on the employer’s Log of Work-Related Injuries and Illnesses – i.e., the OSHA Form 300. Under 29 CFR 1904.32, OSHA requires employers with 10 or more employees to post a completed OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) in a conspicuous place or places where notices to employees are customarily posted in their workplace every year between February 1 and April 30, even if no recordable injuries or illnesses occurred in the previous calendar year. (Employers with fewer than 10 employees and certain low-risk industries are exempt from this requirement.) The Form 300A must be certified by the owner of the company, an officer of the corporation, the highest-ranking company official at the establishment, or that person’s supervisor that the entries on the summary are true, accurate, and complete. Employers are required to keep each completed OSHA Form 300A for a period of five years.

As of February 1, 2021, covered employers should have posted their OSHA Form 300A for injuries and illnesses that occurred in 2020. A common question is whether or not confirmed cases of COVID-19 needed to be included on these reports.

Do I need to report COVID-19 cases?

COVID-19 is a respiratory illness and should be identified as such on an OSHA Form 300 log – if the illness is determined to be work-related.

On May 19, 2020, OSHA issued a memorandum providing updated interim guidance regarding enforcement of the requirements of 29 CFR Part 1904, which regulates recording and reporting of work-related occupational injuries and illnesses with respect to the recording of COVID-19 cases. As of the publishing date of this blog, the memorandum was still in effect.

According to the memorandum, under OSHA's recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if:

1. The case is a confirmed case of 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 set forth in 29 CFR 1904.7.

Given the nature of the disease and community spread, it remains difficult to determine whether a COVID-19 illness is indeed work-related, especially when an employee can be potentially exposure to the virus both in and out of the workplace. Thus, OSHA’s guidance further clarifies how it will enforce the recordkeeping requirements of 29 CFR 1904 for employee COVID-19 illnesses:

• Employers are not expected to undertake extensive medical inquiries to determine the work-relatedness of the illness. In most circumstances, it is considered sufficient for an employer to ask their employee how he or she believes they contracted COVID-19. While respecting employee privacy, an employer can discuss with the employee which activities (both in and out of work) that may have led to the employee contracting COVID-19. It is expected that the employer would review the employee's work environment for potential workplace sources of exposure to the virus.
• Whether or not a COVID-19 illness was work-related should be based on information reasonably available to the employer when they determined that the illness was work-related. If the employer later learns of new information related to an employee's COVID-19 illness, it is expected that the employer would take this new information into account and revise the determination if appropriate. Once the employer has reviewed all reasonable evidence and conducted an inquiry in good faith, if the employer cannot determine 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, the employer does not need to record that COVID-19 illness.

Because COVID-19 is an illness, if an employee voluntarily requests his or her name not be included on the log, it is not required that their name be entered on the OSHA Form 300 log. If you have an employee with a work-related case of COVID-19 and the request their name not be recorded, the recording must be completed as specified under 29 CFR 1904.29(b)(7)(vi).

In all events, it is important as a matter of worker health and safety, as well as public health, for an employer to examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related. OSHA and the CDC have each issued guidance on keeping workplaces safe during the COVID-19 pandemic.

Of course, states have the ability to issue more stringent requirements – so it’s important to also check state department of labor for their recording and reporting requirements before making a full determination.