Earlier this month, the federal Occupational Safety and Health Administration (OSHA) issued guidance requiring employers to investigate whether employee COVID-19 infections are “work-related” for the purpose of determining whether a record must be made of such infections.
Federal OSHA requirements apply to virtually all employers and are in addition to the rules your state, county or city may have.
Under the new guidance, all employers are responsible for recording cases of COVID-19 on their OSHA 300 Logs if all the following requirements are met:
• The case is a confirmed case of COVID-19, as defined by the CDC;
• The case is work-related; and
• The case involves one or more of OSHA’s recording criteria (e.g., the illness results in death or in-patient hospitalization, though some employers must also record all cases of serious illness).
A case is considered work-related if an event or exposure in the work environment either caused or contributed to the illness. Work-relatedness is presumed in illnesses resulting from events or exposures occurring in the work environment unless an exception specifically applies. OSHA has stated that the normal exception for the common cold and flu does not apply to COVID-19 cases.
While employers “should not be expected to undertake extensive medical inquiries,” they must make a “reasonable and good faith inquiry” and record the COVID-19 illness if they determine “it is more likely than not that exposure in the workplace played a causal role” in an employee’s “confirmed case of COVID-19.”
When determining whether a case is work-related, an employer should ask the employee how the employee believes the employee contracted the COVID-19 illness. In addition, while respecting employee privacy, the employer should talk to the employee about any work and outside-of-work activities that may have led to the COVID-19 illness. Finally, the employer must review the employee’s work environment for potential exposure to SARS-CoV-2, the virus that causes COVID-19.
According to OSHA, an employee’s COVID-19 case is likely work-related if:
• several cases develop among workers who work closely together and there is no alternative explanation;
• 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; or
• the employee’s 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:
• the employee is the only worker to contract COVID-19 in the employee’s vicinity and the employee’s job duties don’t include having frequent contact with the general public (regardless of the rate of community spread); or
• outside the workplace, the employee 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 carefully review any evidence provided by medical providers, public health authorities, or the employee.
If, after a reasonable and good faith inquiry, the employer doesn’t believe it’s more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer doesn’t need to record that COVID-19 illness on its OSHA 300 Log.
However, as OSHA points out, the employer should, for reasons of worker health and safety, as well as public health, respond appropriately to protect workers, regardless of whether the case is work-related.
This is only one of many new employment related legal issues arising from the COVID-19 pandemic. Please feel free to contact us if you need any assistance revising your business’s policies and procedures to comply with the new laws and regulations.
Photo by Tai’s Captures on Unsplash
