Updated OSHA Guidance Demonstrates Employers’ Need for Further Pandemic Planning (US)

On May 19, 2020, OSHA issued two updated memorandums to regional administrators and state plan designees. The first updated the agency’s enforcement guidance for recording COVID-19 cases in the workplace. As we discussed here, OSHA originally indicated on April 10, 2020 that it would be exercising “enforcement discretion” and focusing COVID-19 recordkeeping requirements in the healthcare, emergency response, and correctional institution fields only—except where there was objective evidence reasonably available to an employer that a COVID-19 case was work-related. The aim was to allow vital COVID-19 response resources to be allocated elsewhere.

The new memorandum rescinds the original guidance, however, and now states that all employers subject to its illness record-keeping rules (which is most employers) must now track and report workplace COVID-19 cases if the following three criteria are met:

(*) The COVID-19 case is confirmed (as defined by the CDC);

(*) The case is work-related (as defined by 29 C.F.R. § 1904.5); and

(*) The case involves one or more of the general recording criteria (as set forth in 29 C.F.R. § 1904.7).

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