By: Sean T. Devenney
OSHA’s guidance on COVID-19 has been fluid over the last several months and it has particularly been fluid on whether and when an employer has an obligation to record/report a COVID-19 incident as work related. As prior posts have indicated, an employer generally has a duty to record work-related injuries that require more than first aid or that result in loss of consciousness, days away from work, restricted work, or transfer to another job, among other reasons. Employers are also required to notify (i.e., report) directly to OSHA any fatality or severe injury at work (i.e., one that requires in-patient hospitalization). COVID-19 raises many complexities in assessing when to record or report the infection of an employee. The primary problem is, of course, determining whether the infection was work related.
In this regard, on May 19, 2020, OSHA issued revised guidance (found here) on what OSHA expects an employer to do to determine whether to record and/or report COVID-19 incidences involving its employees.
As our prior posts have described, OSHA initially indicated employers should record and report COVID-19 infections as work related unless the employer could show it was not work related. In short, it appeared that OSHA was taking the position that in order to avoid the OSHA reporting requirement the employer had the burden to prove the infection was not work related. OSHA quickly backed away from that position. Instead, OSHA identified certain industries where COVID-19 was more likely to be “work related” (like healthcare and law enforcement) and required only those industries to presume that a COVID-19 positive result was “work related” requiring reporting unless the employer could show otherwise. All other industries need only show some reasonable effort to investigate the COVID-19 infection. Only if it was more likely than not that the infection was work related would the employer have to record/report the incident.
In the May 19, 2020 memorandum (link above), OSHA provided guidance on how it will review the employer’s efforts to determine whether a COVID-19 infection was “work related.” In assessing an employer’s efforts, the OSHA memorandum states as follows:
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, [the OSHA Investigator] should apply the following considerations:
- 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 believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his 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 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 made a reasonable work-relatedness determination.
- The evidence that a COVID-19 illness was contracted at work. [The OSHA Investigator] should take into account all reasonably available evidence, in the manner described above, 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 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 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 she is the only worker to contract COVID-19 in her vicinity and 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, 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.
- [The OSHA Investigator] 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 herself.
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 worker health and safety, as well as public health, for an employer to examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.
Based on this guidance, there are several take-aways:
- Every employer faced with a COVID-19 infection to its employee should conduct some level of inquiry to determine “work relatedness.”
- The employer should document its efforts to determine “work relatedness.”
- If the employer determines that it is more likely than not that the employee contracted COVID-19 at work, the employer should record and potentially report the incident if the COVID-19 infection requires a hospital stay (or results in a fatality).
- If an employer has more than one employee come down with COVID-19, and the employees work in the same facility in close proximity, the second (and subsequent infections) are much more likely to be considered work related.
For questions regarding reporting and recording COVID-19, please contact your DSV attorney or Sean Devenney at firstname.lastname@example.org
***The information contained on this website is for informational purposes and is not intended as formal legal advice and cannot be relied upon as such. No attorney client relationship is established or intended as a result of the information contained on this website.***