OSHA Provides Guidance on When Employers Must Report Cases of COVID-19

On May 26, 2020, the Occupational Safety and Health Administration (OSHA) issued interim guidance explaining when employers must record and report cases of COVID-19.

Under OSHA's current recordkeeping requirements, COVID-19 is considered a “recordable” illness that may need to be reported to federal authorities.  Employers should be aware, however, that recording and reporting an active case of COVID-19 does not mean that an employer has violated any applicable health or safety standard.  In addition, employers in certain low hazard industries or those with ten (10) or fewer employees have limited recording obligations, and must only report a COVID-19 illness that results in a fatality, hospitalization, amputation, or other grievous bodily injury.

All other employers are responsible for recording and reporting COVID-19 cases if the following criteria are satisfied:

1. The employee is determined to have a confirmed case of COVID-19, as that illness is defined by the Centers for Disease Control and Prevention (CDC);
2. The confirmed case of COVID-19 is determined to be “work-related,” as that term is defined by governing federal regulations; AND
3. The confirmed case of COVID-19 results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. An employer must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.

The most challenging factor for employers to assess is whether a confirmed case of COVID-19 is “work-related.”  Under current regulations, an employer must consider an injury or illness to be “work-related” if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness that led to the resulting condition.  Work-relatedness is typically presumed for injuries and illnesses arising from events or exposures occurring in the workplace, unless the employer can identify one of several (narrow) exceptions under federal law.

In determining whether an employer has complied with its obligation to investigate and determine the work-relatedness of a COVID-19 case, OSHA has directed its local field investigators around the country to consider the following variables:

1. The reasonableness of the employer’s investigation into work-relatedness. This inquiry does not have to be extensive, especially given employee privacy concerns and most employers' lack of expertise in this area.  It is sufficient in most circumstances for the employer, upon learning of an employee's COVID-19 illness:  (a) to ask the employee how he or she believes the disease was contracted; (b) to discuss with the employee his or her work and out-of-work activities that may have led to the illness while respecting the employee’s privacy; and (c) to analyze the employee's work environment for potential COVID-19 exposure.  This analysis should be informed and guided by any other instances of workers in that same environment contracting COVID-19.
2. 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 is available, that information should also be taken into account.
3. The evidence that a COVID-19 illness was contracted at work. There is no one-size-fits-all approach to assessing this question, but certain types of evidence may weigh in favor of (or against) work-relatedness.  For example:
   
   1. An employee’s COVID-19 illness is more likely to be work-related when several cases develop among workers who work closely together and there is no alternative explanation;
   2. An employee's COVID-19 illness is more likely to be work-related if it is contracted shortly after a lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation;
   3. An employee's COVID-19 illness is more likely to be work-related if his or her job duties include frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation;
   4. Conversely, an employee's COVID-19 illness is less likely to be work-related if he or she is the only worker to contract COVID-19 in the vicinity and his or her job duties do not include having frequent contact with the general public, regardless of the rate of community spread;
   5. An employee's COVID-19 illness is less likely to be work-related if he or she, outside the workplace, closely and frequently associates with someone (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.

Local field investigators are directed to give “due weight” to any evidence of illness causation that is provided to employers by medical providers, public health authorities, or the employee.

Employers need to consider all of the above factors in determining whether a confirmed case of COVID-19 is work-related.  Ultimately, if the employer conducts a reasonable, good-faith inquiry and cannot determine whether exposure in the workplace gave rise to a particular case of COVID-19, the employer is not required to record and report the illness.  However, OSHA is encouraging employers to examine and respond to confirmed COVID-19 cases in an effort to protect their employee and the general public.

Investigation of work-relatedness can be a difficult and confusing task for employers.  If you need assistance with regard to any aspect of this process, please reach out to the Labor & Employment Group at Burke, Warren, MacKay & Serritella.