New OSHA Guidance Requires Reporting of Certain COVID-19 Cases

New OSHA Guidance Requires Reporting of Certain COVID-19 Cases

The Occupational Safety and Health Administration (OSHA) issued new guidance on May 19, 2020, that requires employers to determine whether employees contracted COVID-19 at the workplace. The new guidance is effective May 26, 2020, and requires employers to record cases of COVID-19, if:

  • The case is confirmed by at least one positive test (as defined by the CDC as a respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19);
  • The case is work-related; and
  • The case causes employees to seek medical treatment beyond first aid, results in lost work days or restricted duty, or causes loss of consciousness or death.

This guidance is contrary to previous guidance issued by OSHA in April 2020. Previously, OSHA exempted most employers from making work related determinations. As such, OSHA only required employers in the healthcare industry, emergency response organizations, and correctional institutions to make work-relatedness determinations. However, this previous OSHA guidance is rescinded and replaced by the new guidance.

As such, employers must begin determining whether employees contracted COVID-19 while at the workplace. Compliance officers must look at the following considerations to determine whether employers have complied with this obligation:

  • The reasonableness of the employer’s investigation into work-relatedness;
  • The evidence available to the employer; and
  • The evidence that a COVID-19 illness was contracted at work.

For clarity, when an employer learns that an employee is sick with COVID-19, the employer should (1) ask the employee how he/she believes he/she contracted the COVID-19 illness; (2) talk to the employee about his/her out-of-work activities that might have caused the COVID-19 illness; and (3) review the employee’s work environment to consider other related cases.

Determinations of whether a case is work-related should be based on evidence reasonably available to the employer at the time the work-relatedness determination is made. An employer’s work-relatedness determination can change, however, if the employer obtains additional information that might impact the work-relatedness determination.

OSHA asserts that certain types of evidence weigh in favor of or against work-relatedness determinations. For example:

  • 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 co-worker 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 her 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 she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread; and
  • An employee’s COVID-19 illness is likely not work-related if she, outside the workplace, closely and frequently associates with someone who (1) has COVID-19; (2) is not a co-worker, and (3) exposes the employee during the period in which the individual is likely infectious.

Ultimately, 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, the employer does not need to record that COVID-19 illness. However, if, after the reasonable and good faith inquiry described above, the employer determines that the COVID-19 illness is likely work-related, then the illness should be coded on the OSHA Form 300 Log as a respiratory illness. Importantly, employees may request for their names to be excluded from the log and employers must honor these requests.

Importantly, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations. Thus, those employers are only required to report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.

As a final note, the Michigan Occupational Safety and Health Administration (MIOSHA) has not provided guidance relating to COVID-19 recordkeeping and reporting. As such, Michigan employers should keep records and report in accordance with the May 19, 2020, OSHA guidance.

The link below provides access to the May 19, 2020 OSHA guidance:

Please feel free to reach out to Masud Labor Law Group with any questions or for compliance assistance.

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