Employer’s Obligation on Reporting COVID-19 as a Work-Related Illness

By Mary Leigh Pirtle

The Occupational Safety and Health Administration (OSHA) has issued new guidance regarding an employer’s obligation to record all COVID-19 illnesses among workers if the illness is “work-related.” This new obligation went into effect on May 26, 2020, and supersedes guidance issued in April.

Recordkeeping Obligations

Employers are responsible for recording cases of COVID-19 if all of the following requirements are met:

• The case is a confirmed case of COVID-19, as defined by the CDC.
• The case is work-related, as defined by 29 CFR § 1904.5.
• The case involves one or more of the recording criteria set forth in 29 CFR § 1904.7 (e.g., medical treatment, days away from work).

When is a COVID-19 Illness Work-Related?

An illness is considered “work-related” under 29 CFR § 1904.5 if exposure in the work environment either caused or contributed to the illness or significantly aggravated a pre-existing injury or illness.

OSHA now requires all but small (ten employees or less) and low hazard industry employers to make a reasonable and good faith inquiry into whether any COVID-19 illness contracted by an employee was more likely than not contracted at work.

While recognizing the difficultly in determining work-relatedness, OSHA has set forth a variety of factors outlined below to be used when determining whether an employer has complied with its obligation to make a reasonable and good faith inquiry and determination of work-relatedness:

Employers should take the following actions:

1. Ask the employee how they believe they contracted the COVID-19 illness,
2. While respecting employee privacy, discuss with the employee their 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, as informed by other instances of workers in that environment contracting COVID-19.
   1. OSHA will look to the evidence available to the employer at the time it made its work-relatedness determination.  However, 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 conclusion.
   1. OSHA has identified certain types of “evidence” that may weigh in favor of or against work-relatedness:

Evidence weighting in favor of work-relatedness:

• 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 the individual’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.

Evidence weighting against work-relatedness:

• An employee’s COVID-19 illness is likely not work-related if the individual is the only worker to contract COVID-19 in the vicinity and the individual’s 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 the individual, outside the workplace, closely and frequently associates 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 the individual is likely infectious.

Also, OSHA has instructed that Certified Safety and Health Officials (CSHOs) 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 personally.

If after conducting a reasonable and good faith inquiry using the factors listed above, the employer determines it is “more likely than not” that a workplace exposure played a causal role in the employee’s COVID-19 illness, the employer is obligated to record that illness in compliance with OSHA’s recordkeeping requirements.

This article was originally published by Bass, Berry & Sims on June 10, 2020 at www.bassberryhrlawtalk.com.