On May 19, 2020, the Occupational Safety and Health Administration (OSHA) altered its policy regarding an employer’s obligation to record cases of COVID-19 in the workplace. Previously, OSHA required only employers in the healthcare/emergency responder/correctional institution fields to record positive cases of the Coronavirus and to determine if the case was work related. With many states returning to the workplace across the country, OSHA has now determined that all employers must maintain records of COVID-19 cases in the workplace. According to the updated guidance, OSHA has determined that the Coronavirus is a recordable illness for all employers who are required to maintain OSHA 300 forms. Employers must record a case if:
1. it is confirmed that an employee has contracted COVID-19;
2. the employee was exposed to COVID-19 in the workplace; and
3. the case meets the OSHA recording standards (the case results in days away from work, transfer to another job, restricted work, medical treatment beyond first aid or loss of consciousness or death).
OSHA acknowledged that it could be difficult to truly determine that an employee contracted the virus in the workplace because COVID-19 can be spread through community transmission and from individuals who are asymptomatic or pre-symptomatic. The new guidance lists factors to aid employers in assessing whether a case is likely to have been work-related or not. OSHA will consider the following information in evaluating whether the employer complied with the requirement to properly make these work-related determinations:
1. The reasonableness of the investigation into work-relatedness. While an employer is not obligated to undertake probing medical assessments, the employer should ask the employee who tested positive how s/he believes s/he contracted the virus, discuss any activities outside of work that may have led to exposure, and review the work environment for potential exposure.
2. The evidence available to the employer. The employer can be expected to consider the information that was available to it at the time it made the decision about work relatedness. If additional information is provided at a later date, it should be taken into account at that time.
3. Factors that will weigh in favor of work-related exposure.
- Multiple cases develop among employees who work closely together and there is no alternative explanation;
- A case was contracted shortly after “lengthy, close” exposure to customer/co-worker and there is not an alternative explanation;
- The worker’s job duties include close frequent contact with the public community with significant cases and there is not an alternative explanation.
4. Factors that weigh against a finding of a work-related exposure:
- Only one worker contracts COVID-19, and his/her job duties do not involve contact with the public (regardless of positive cases in the community).
- The worker has a close contact family member/friend who is not a coworker who has COVID-19 during the period in which the worker was likely infected.
The guidance gives specific examples to suggest whether exposure occurred inside or outside of the work environment. For example, OSHA proposes that if there were only one case among a workforce, it would be unlikely to suspect that the case was spread at work. However, if there had been an outbreak among employees that had close contact with one another, the employer would be required to report the cases as linked. There are many examples provided in the guidance to aid in the process of decision-making.
OSHA states that if, after a reasonable inquiry, done in good faith, an employer is unable to determine that an employee contracted COVID-19 in the workplace, it is not required to record the illness in the log. However, employers should document the facts they gather to make their determination and maintain the information as one case may arise from another.
These new requirements mean that all employers must monitor employee illness-related absences and follow up with employees who have reported COVID-19 symptoms to determine whether they have tested positive for COVID-19. For employers subject to recording requirements, a positive COVID-19 test will trigger the requirement to investigate whether the infection was work-related, regardless of whether the employee recovers at home or is hospitalized.
Businesses that can keep employees teleworking are able to avoid the additional compliance and reporting requirements for the time being. Businesses planning to bring employees back into the workplace must be prepared to comply with the newest requirements to monitor the safety of the workforce and avoid violations.