Effective May 26, 2020, and until further notice, OSHA revised its recordkeeping requirements to provide new rules relating to COVID-19. Below is a summary of the OSHA recordkeeping requirements, the new COVID-19 rules, and practical advice for compliance.
Who needs to follow OSHA’s recordkeeping requirements?
Unless exempt, businesses with more than 10 employees must follow OSHA’s recordkeeping requirements. Exemption is based upon the businesses’ NAICS code and includes administrative offices and certain retail, finance, insurance, and real estate businesses. For example, most accountants, consultants, doctors (except hospitals), and financial investors do not have to keep records. However, upon request, OSHA may require exempt businesses to keep records.
OSHA recordkeeping requirements:
Generally, employers must keep records of any work-related serious injury or illness for five years using three forms: the OSHA 300, OSHA 301, and OSHA 300a.
OSHA 300: a log of work-related serious injuries and illnesses that describes the injury and identifies the person who was injured.
OSHA 301: an incident report which contains details of the specific event that resulted in the injury. The OSHA 300 and OSHA 301 forms only need to be filled out if a serious injury or illness occurs.
OSHA 300a: a summary that tracks statistics relating to injuries (e.g., number of injuries and deaths) which must be completed yearly regardless if any injury occurred during the preceding year. Employers must post the OSHA 300a in a common area from February through April. Certain retail, entertainment, transportation, service providers, and real estate businesses with more than 20 employees but fewer than 249 employees, determined by NAICS code, must also electronically submit the Form 300a.
OSHA requires all employers to report work-related hospitalizations within 24 hours and injuries resulting in amputation, injuries resulting in the loss of an eye, and fatalities within 8 hours by calling OSHA.
Temporary COVID-19 rules:
OSHA clarified that if an illness meets the CDC’s definition of COVID-19 and is work-related, then it must be recorded. Employers are not expected to inquire extensively as to whether the COVID-19 case was work related but should ask the employee how they believe that contracted the illness and about any activities that may have led to contracting COVID-19 while respecting the employee’s privacy. If the employer cannot determine whether the COVID-19 case is more likely than not to be work related, the employer does not have to record the case.
Complying with OSHA’s recordkeeping requirement:
Designate someone in your office whose job it is to maintain OSHA records. Ensure that records are kept in a safe place and for a period of 5 years. Keeping records but failing to maintain them is considered non-compliance.
Record suspected COVID-19 related illnesses. OSHA clarified that “recording a COVID-19 illness does not, of itself, mean the employer has violated any OSHA standard.” When OSHA fines a business for recordkeeping, it is almost always for failing to report, not for overreporting.
Employers should consider having an attorney update their handbook to include a policy on recording COVID-19 cases, including what questions to ask.
If you need any assistance or guidance on any of these matters, we are here to help.
Bruce E. Loren, Kyle W. Ohlenschlaeger and Brandon J. Camilleri of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, complex commercial litigation, and employment law. Mr. Loren has been certified in construction law by the Florida Bar since 2004, exemplifying the Bar’s recognition of his expertise. Mr. Loren, Mr. Ohlenschlaeger and Mr. Camilleri can be reached at: [email protected], [email protected], and [email protected] or 561-615-5701
