OSHA is trying to simplify how most employers go about determining whether an employee who is diagnosed with COVID-19 contracted the disease at work or elsewhere, but in the process may have just made things more complicated.
Under OSHA’s earlier April guidance, most employers effectively were not required to record cases of COVID-19. Since then, employers outside of the healthcare industry only needed to record an employee having the disease if there was “objective evidence” that the case was work-related and the evidence was “reasonably available” to the employer.
This new guidance is largely a return to the recordkeeping criteria that have been in place since 2002, which was relaxed by the April 10, 2020, guidance. Employers will again be expected to investigate COVID-19 cases just as they would any other illness case.
On May 19, OSHA issued revised guidance that went into effect on May 26. The new one initially reiterates the agency’s recordkeeping criteria for COVID-19:
● It is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC).
● It is work-related as defined by the OSHA recordkeeping regulations that deal with work-relatedness.
● One or more of the general recording criteria in the same regulations are met, such as medical treatment or days away from work.
Keep in mind that the first step of the above three-step process is met only if the diagnosis of COVID-19 is established by a positive test result for SARS-CoV-2. The upshot is that it does not appear that symptoms alone, or even a diagnosis alone, would be enough, notes the law firm of Constangy Brooks Smith & Prophete.
It explains that the key to COVID-19 recordkeeping determinations is the second step: determining whether the case is work-related. “OSHA acknowledges that because of the ‘ubiquity of community spread,’ it is difficult to determine whether a COVID-19 illness is work-related. Employers are expected to make a ‘reasonable’ investigation as to whether the case is work-related.”
As a result, Constangy Brooks recommends that employers should, among other things, ask the employee how he/she believes the illness was contracted. Discuss with the employee the work and outside-of-work activities that may have led to the illness. Also, review the employee’s work environment for potential SARS-CoV-2 exposures, including whether other employees who work near the employee also contracted COVID-19.
Other Types of Evidence
Frederick Rom, Mason Freeman and Alexander Buckley, attorneys with the law firm of Womble Bond Dickinson, lay out several other types of evidence that may be used to establish work-relatedness:
1. Several cases develop among workers who work closely together and there is no alternative explanation.
2. 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.
3. 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.
4. If he/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.
5. If he/she, 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, and exposes the employee during the period in which the individual is likely infectious.
“A Certified Safety and Health Official (CSHO) 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,” says Rom, Freeman and Buckley.
If, after the reasonable and good faith inquiry, the employer can’t 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, there is no need to record that COVID-19 illness.
“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 and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related,” the attorneys advise.