As businesses begin to reopen with rising infection rates in many states, it is inevitable that employers will have incidents of COVID infection in the workplace even when best management practices and safety protocols are observed. As a general rule, infectious disease transmission is not a reportable workplace injury for purposes of OSHA recordkeeping and reporting requirements; however, COVID infection is being treated as a recordable injury where the infection is determined to be work-related.
Determining work relatedness can present challenges to an employer in a pandemic environment where the source of the infection may not be readily apparent. In recognition of the difficulty, OSHA has issued enforcement guidance relaxing the otherwise rigid reporting requirements.
Under the guidance document which can be found here, COVID infection is being treated as a recordable injury under OSHA if:
- The case is confirmed as COVID-19;
- The case is work-related; and
- The case involves one or more of the general recording criteria in 29 CFR § 1904.7.
As for #2 above, because of the difficulty in determining work-relatedness, OSHA is exercising enforcement discretion to assess employers’ efforts in making work-relatedness determinations. In deciding whether an employer’s determination was reasonable, Compliance Safety and Health Officers (“CSHOs”) are instructed to consider the reasonableness of the employer’s investigation, the evidence available to the employer, and the evidence that the COVID case was contracted at work. The guidance provides “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.”
In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, CSHOs should apply the following considerations:
- The reasonableness of the employer’s investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his 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 COVID-19 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.
- 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 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 determination.
- The evidence that a COVID-19 illness was contracted at work. CSHOs should take into account all reasonably available evidence, in the manner described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:
- 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 his 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.
- An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, 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.
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 herself.
The COVID guidance does not change OSHA reporting requirements as far as who is required to report. So, employers with 10 or fewer workers are still exempt, as are employers in industry classes exempted from reporting, UNLESS there is an in-patient hospitalization, amputation, fatality, or loss of an eye. Then those normally exempt employers must report the incident.