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

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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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