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Reporting COVID-19 Work Related Cases

By Darcy Cook, CSHO, SHS, PTA, Safety Trainers

COVID-19 is an OSHA recordable injury for all businesses, even those with less than 10 employees and in low hazards when identified as work related.

Just when employers began calling more employees back to work, OSHA revised its guidance on when a COVID-19 infection is recordable. On the surface, the new requirements remain the same as those issued in early April.

Employers that are subject to the recordkeeping rules must record COVID-19 cases if:

  • The case is a confirmed case of COVID-19, as defined by the CDC;
  • The case is work-related as defined by OSHA regulations; and
  • The case involves one or more of the general recording criteria, which in the case of a COVID-19 diagnosis will easily be met since most infected employees are likely to have missed a day of work or been diagnosed by a physician or other licensed health care professional.

The principal difference between recent updates in May and what was issued in early April, is that OSHA previously stated that it would not require most employers (except those in the healthcare industry, emergency response organizations, and correctional institutions) to make work-relatedness determinations unless there was objective evidence that a COVID-19 case was work-related and the evidence was reasonably available to the employer.

Under the new guidance, while OSHA still recognizes that in many instances it will be difficult to determine whether a COVID-19 illness is work-related because an employee could have been exposed in or out of the workplace.

However, OSHA will now expect employers to make a reasonable determination of work-relatedness. Compliance officers will evaluate the reasonableness of the employer's investigation into work-relatedness and any evidence that COVID-19 had been contracted at work.

Did You Know?
Generally, employers must report incidents to federal OSHA when an employee fatality occurs on the job within eight hours of the accident, or when an employee suffers a work-related in-patient hospitalization, amputation, or loss of an eye within 24 hours. Just like all in-patient hospitalization admissions, if an employee is hospitalized because of COVID-19, and the employee contracted COVID-19 while at work, the employer must report that in-patient hospitalization to OSHA – but only if the hospitalization occurs within 24 hours of the employee contracting the virus. 29 CFR 1904.39(b)(6).

What Should Employers Do?
Employers should reference the most recent OSHA guidance on recordkeeping enforcement for assistance in determining whether a case of COVID-19 is work-related.

The reasonableness of the employer's investigation into work-relatedness. For most employers learning of an employee's COVID-19 illness, it is sufficient to: (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.

The evidence available to the employer. The COVID-19 Coordinator will consider the information reasonably available to the employer at the time it made its work-relatedness determination.

The evidence that COVID-19 was contracted at work. The guidance highlights that certain types of evidence weigh in favor of or against work-relatedness. For example, when there is no alternative explanation, a case is likely work related:

  • When several cases develop among workers who work closely together;
  • If it is contracted after lengthy, close exposure to a customer or coworker who has a confirmed case of COVID-19; or
  • If an employee's job duties include having frequent, close exposure to the general public in a locality with widespread transmission.

If, after conducting a good faith and reasonable determination of work-relatedness, the employer cannot determine whether it is more likely than not that exposure in the workplace caused a particular case of COVID-19, the employer will not have to record the case.

However, the employer who makes a determination that infection is not work-related would be well-advised to document what it did to reach that conclusion. Did the employer talk to the infected employee? Did the employer ask the employee how he believed he became infected? Did the employer review the employee's work environment and determine whether the employee had contact with others who may have been infected?

In its guidance, OSHA reminds employers that recording a COVID-19 illness "does not, of itself, mean that the employer has violated any OSHA standard," which raises the question of whether employers should err on the side of caution and record any case where the employee might have been infected at work.

Recognize, however, that such a decision could create problems on the workers compensation front. If OSHA sticks with its recent guidance, the employer that makes a good faith and reasonable determination that it is not likely (i.e., there is not a "preponderance of the evidence") that the employee was infected at work should be able to avoid recording the illness.

Finally, employers with ten or fewer employees, and certain employers in low-hazard industries, still have no recording obligations, with one exception. All employers, regardless of size, must report work-related COVID-19 illnesses that result in a fatality or an in-patient hospitalization. A report can be made by calling the nearest OSHA office.

OSHA RESOURCES

Darcy Cook is President of Safety Trainers, a division of Cook Professional Resources, Inc. (Worcester, MA). She can be reached at (508) 799-2857 or at darcy@safetytrainers.com or www.safetytrainers.com.

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