Updated on May 21, 2020

We previously reported on OSHA’s April 10, 2020 guidance on making a determination as to whether to report a COVID case or diagnosis. A new memorandum, issued on May 19, provides an update to that interim guidance with respect to the recording of COVID-19 cases. This updated guidance takes effect as of May 26. The memorandum starts out by defining, generally, when COVID is a recordable illness.

Report a COVID case, if:

  1. It is a confirmed case of COVID-19 by the CDC.
  2. As defined by 29 CFR § 1904.5, it is work-related.
  3. It involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

This guidance continues to acknowledge that due to the nature of COVID:

“In many instances, it remains difficult to determine whether the illness is work-related. Especially when an employee has experienced potential exposure both in and out of the workplace.”

Thus, OSHA indicates it “exercises its enforcement discretion in order to provide certainty to employers and workers.” The new rule is that OSHA enforces the recordkeeping requirements of 29 CFR 1904 for employee COVID-19 illnesses for all employers.

According to the following guidelines:

Step 1

The diagnosis of COVID-19 must be established by a positive test result for SARS-CoV-2. Thus, it does not appear that symptoms alone, or even a diagnosis alone, would be enough. This raises the question of whether hospitalizations or fatalities related to COVID-19 are recordable before the employer can obtain the result of a positive test.

Step 2

The primary question is whether the case is work-related. The Guidance directs that in making this reasonable determination of work-relatedness, employers should apply the following considerations. OSHA recognizes that employers should not expect to undertake extensive medical inquiries. Given employee privacy concerns and most employers’ lack of expertise in this area. It concludes that it is sufficient in most circumstances.

When the employer learns of an employee’s COVID-19 illness, it should:
  1. Ask the employee how they believe they contracted the COVID-19 illness.
  2. While respecting employee privacy, discuss their work and out-of-work activities that may have led to the COVID-19 illness.
  3. Review the employee’s work environment for potential SARS-CoV-2 exposure. This is “informed” by any other instances of workers in that environment contracting COVID-19 illness.

Further, while OSHA acknowledges no specific formula for determining whether the employer met the reasonableness standard, employers should consider the following types of evidence that may weigh in favor of or against work-relatedness.

For instance, COVID-19 illness is likely work-related when:
  • Several cases develop among workers who work closely together with no alternative explanation.
  • Contracted shortly after lengthy, close exposure to a particular customer or coworker with a confirmed case of COVID-19 and no alternative explanation.
  • Job duties include frequent, close exposure to the general public in a locality with ongoing community transmission with no alternative explanation.
An employee’s COVID-19 illness is likely not work-related if:
  • They’re the only worker to contract COVID-19 in their vicinity.
  • Job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • Outside the workplace, closely and frequently, they associate with someone (e.g., a family member, significant other, or close friend) who:
    • Has COVID-19
    • Is not a coworker
    • Exposes the employee during the period in which they’re likely infectious

Finally, the guidance provides that 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 themself.

This statement is also mentioned elsewhere in the guidance. It states that an employer must give “due weight” to the opinion of a medical provider or public health authority as to whether the case is work-related.

Evidence as to whether a COVID illness is work-related should be made based on the information reasonably available to the employer at the time. If they later learn more information related to an employee’s COVID-19 illness, it should be taken into account in determining if an employer 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, they do not need to record that COVID-19 illness.

OSHA concludes this section by stating that:

“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. They should respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.”

Finally, OSHA states that recording a COVID-19 illness does not mean that the employer violated any OSHA standard. It also reminds employers that those with 10 or fewer employees and in low-hazard industries have no recording obligations. They only need to report work-related COVID-19 illnesses that result in a fatality, in-patient hospitalization, amputation, or loss of an eye.

This information is accurate as of May 21, 2020. It is subject to change based on any new legislation.

Anne-Marie L. Storey, Attorney at Law, Rudman Winchell
Anne-Marie Storey, Esq
Rudman Winchell

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