Previously, the
Recordkeeping Part 1 and
Recordkeeping Part 2 articles discussed how the OSHA recordkeeping process and reporting requirements are required components for certain employers. This article will cover the determination behind the OSHA Recordkeeping and Reporting requirements, helping LTC facilities navigate these requirements more effectively. It will specifically address the determination of work-relatedness for injuries and illnesses, such as COVID-19, in the process of identifying recorded or reported events.
Understand the Difference between “Recording” and “Reporting”
It is very important to understand the difference between OSHA recording and reporting. The understanding lies in the focus and the nature of incidents they address.
OSHA recording involves the systematic documentation of all work-related injuries and illnesses maintained by employers to track and analyze patterns for internal safety improvement. This process includes the use of forms like OSHA Form 300, 301, and 300A.
OSHA
reporting is the timely submission of specific severe injuries, fatalities, or workplace incidents to OSHA directly. Reporting is mandatory for incidents such as fatalities within 8 hours and severe injuries and/or hospitalizations within 24 hours (see
Report a Fatality or Severe Injury for more details).
While recording provides an internal recordkeeping framework, reporting is an external communication mechanism to alert OSHA to critical workplace incidents.
Determining Work-Relatedness
To determine work-relatedness, OSHA regulations state, "you must evaluate the employee's work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition . . ." 29 CFR 1904.5(b)(3). There is a presumption that an injury or illness is work-related if it resulted “from events or exposures occurring in the work environment” 29 CFR 1904(5)(a). As a result, most determinations are straightforward. For example, if an employee slips and falls while working, resulting in a broken wrist, the injury is almost certainly work-related.
OSHA further complicates the analysis, however, by offering a list of exceptions—instances where an injury or illness is not considered work-related. Those exceptions include:
- An injury or illness suffered when the employee was at the jobsite as a member of the public, like visiting a relative who is a resident, rather than as an employee.
- Symptoms that arise at work but are entirely due to an unrelated event.
- Eating, drinking, or preparing food for personal consumption.
- The common cold or flu.
The entire list of exceptions is available
here.
Additionally, there are injuries and illnesses, like COVID-19, that are difficult to identify as work-related or not work-related. OSHA's guidance on recordkeeping for COVID-19 states that healthcare employers are required to conduct a case-by-case investigation to determine whether “one or more events or exposures in the work environment either caused or contributed to” the illness. (
OSHA Enforcement Memorandum, May 19, 2020). The goal of the investigation is to determine whether the illness is “more likely than not” caused by an exposure in the workplace. (
Letter of Interpretation, Jan. 15, 2004). If, however, 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, OSHA’s older guidance on COVID-19 stated that the employer does not need to record that COVID-19 illness."
OSHA Enforcement Memorandum, May 19, 2020.
While OSHA’s suggests
certain considerations for determining whether COVID-19 is work-related (which are the only official statements on the subject), here are additional examples of questions that might be used in an COVID-19 investigation:
- Did the facility have any positive residents or other employees before the Employee tested positive for COVID-19?
If No, the case is not likely work-related and should not be included on your OSHA 300 log.
If Yes,
- Did the Employee work directly with the positive resident(s) or other employee(s) (i.e., on the same hall and on the same shift) before the employee tested positive for COVID-19?
If No, the case is not likely work-related and should not be included on your OSHA 300 log.
If Yes, - Was the Employee wearing CDC recommended PPE during all encounters with the above listed positive resident(s) or employee(s)?
If Yes, the case is not likely work-related and should not be included on your OSHA 300 log.
- Did the Employee have a likely exposure outside of work before the employee tested positive?
If Yes, the case is not likely work-related and should not be included on your OSHA 300 log.
Conclusion:
Determining work-relatedness is just one step in this process of determining whether an injury or illness must be recorded or reported, but it is arguably the most complicated step. For additional guidance, see our earlier articles and the
FAQs found within the OSHA regulation.