On April 10, 2020 the Occupational Safety and Health Administration (OSHA) issued its Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19),¹ clarifying that confirmed COVID-19 cases may be considered recordable illness, coded as a “respiratory illness” on the OSHA Form 300.  Because COVID-19 is an illness, if an employee voluntarily requests that his or her name not be entered on the log, the employer must comply.²  This guidance takes effect immediately, but is intended to be time-limited to the current public health crisis.  Employers are asked to check OSHA’s webpage at www.osha.gov/coronavirus for updates.

While not unique to the transportation industry, this guidance is applicable to employers involved in all modalities of transportation.  Employers that are subject to this guidance are responsible for recording cases of COVID-19, if all of the following conditions are met:

1. The case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC).A confirmed case of COVID-19 means an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19; AND
2. The case is work-related as defined by 29 CFR § 1904.5, which provides that an employer must consider an injury or illness 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. “Work-relatedness” is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in the regulation specifically applies; AND
3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7, which provides that an employer must consider an injury or illness to meet the general recording criteria if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. An employer must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.

However, in areas with ongoing community transmission, OSHA is exercising enforcement discretion. Under the guidance, employers, other than those in the healthcare industry, emergency response organizations³ and correctional institutions, are not required to make a work-related determination except where:

• There is objective evidence that the cases may be work related, including multiple cases developing among workers working closely together.

                                 and

• Evidence was reasonably available to the employer that the cases may be work related.

OSHA stated that its enforcement policy is intended to help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult work-relatedness decisions in circumstances where there is community transmission.

If you have any questions about these developments, or the transportation industry in general, please contact our Firm’s Transportation Practice Group leaders, Matt Mitchell, mmitchell@c-wlaw.com, or Bill Pentecost, wpentecost@c-wlaw.com.