Since the first known case of COVID-19 was confirmed in the United States, numerous questions have been asked by employers regarding whether or not they have to report COVID-19 cases among their employees to the Occupational Safety and Health Administration (OSHA) as a work-related hospitalization or fatality. Under the initial reporting requirements spelled out by OSHA in their May 19, 2020 memorandum, employers were responsible for recording workplace cases of COVID-19 on an OSHA 300 Log only if the case:
- was confirmed as COVID-19, as defined by the Centers for Disease Control and Prevention (CDC),
- was “work-related”, which was originally defined by OSHA as “resulting from events or exposures occurring in the work environment”, and
- involved one or more of the general recording criteria, which included death, days away from work, medical treatment beyond first aid, or loss of consciousness.
Unfortunately, this broad language led to a considerable amount of confusion regarding what a “work-related incident” actually meant. Fortunately, since their original memorandum, OSHA has issued updated guidance. In the updated guidance, an employer’s work-related analysis is critical, as employers must only record/report to OSHA work-related cases of COVID-19. However, employers must do their due diligence to investigate whether or not the employee’s COVID-19 diagnosis was work-related or non-work-related. According to OSHA’s most recent document titled, Revised Enforcement Guidance for Reporting Cases of Coronavirus Disease 2019 (COVID-19), because of the difficulty with determining work-relatedness, OSHA is exercising enforcement discretion to assess employers’ efforts in making work-related determinations.
In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, employers should apply the following considerations:
- The evidence that a COVID-19 illness was contracted at work. Employers should take into account all reasonably available evidence to determine whether an employer has complied with its recording obligation. This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:
- COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer, vendor, or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if his or her job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- An employee’s COVID-19 illness is likely not work-related if he or she is the only worker to contract COVID-19 in his or her vicinity and his or her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- An employee’s COVID-19 illness is likely not work-related if he or she, outside the workplace, closely and frequently associates with someone, e.g., a family member, significant other, or close friend who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
- Employers should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee himself or herself.
- The reasonableness of the employer’s investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he or she believes he or she contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his or her work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting the COVID-19 illness.
- The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee’s COVID-19 illness, then that information should be taken into account as well in determining whether an employer originally made a reasonable work-relatedness determination.
If, after the reasonable and good faith inquiry described above, 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, the employer does not need to record that COVID-19 illness. In all events, it is important as a matter of employee health and safety, as well as public health, for an employer to examine COVID-19 cases among employees and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related or not.
In addition to the revised guidance listed above, employers should take note of the specific timing requirements that OSHA has spelled out for each particular scenario of an employee’s work-related exposure to COVID-19. If an employer learns that an employee was hospitalized within 24-hours of a work-related exposure, and determines later that the cause of the hospitalization was a work-related case of COVID-19, the employer must report the case to OSHA within 24-hours of the determination. If an employer learns that an employee has died within 30-days of a work-related incident, and determines later that the cause of death was a work-related case of COVID-19, the case must be reported to OSHA within eight-hours of the employer’s determination.
So, for employers to properly comply with OSHA requirements as they pertain to reporting requirements for COVID-19, employers should do the following:
- Evaluate the work-relatedness for any COVID-19 case in the workplace, and maintain this analysis in the event of a later OSHA audit;
- record COVID-19 confirmed work-related cases on an OSHA 300 Log; and
- report any work-related COVID-19 fatalities and hospitalizations to OSHA, and pay particular attention to the new timing requirements as noted above.
- In addition, employers should check for state-specific OSHA guidelines in all states in which employees reside for COVID-19 reporting requirements as they may differ from federal OSHA guidelines.
For additional information related to OSHA reporting requirements as they pertain to work-related exposures to COVID-19, please contact us at www.NewFocusHR.com
Written by: Patrick McKenna, SHRM-CP