May 21, 2020
We had previously reported on OSHA’s April 10, 2020 guidance on making a determination as to whether a COVID diagnosis was reportable. A new memorandum was issued on May 19, which provides an update to that interim guidance with respect to the recording of COVID-19 cases. This updated guidance takes effect as of May 26.
The memorandum starts out by defining, generally, when COVID is a recordable illness. It is, if:
- The case is a confirmed case of COVID-19 by the CDC;
- The case is work-related as defined by 29 CFR § 1904.5; and
- The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
This guidance continues to acknowledge that due to the nature of COVID, “in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.”
Thus, OSHA indicates it is going to “exercise[e] its enforcement discretion in order to provide certainty to employers and workers.”
The new rule is that OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee COVID-19 illnesses for all employers according to the following guidelines.
For Step 1, above, the diagnosis of COVID-19 must be established by a positive test result for SARS-CoV-2. Thus, it does not appear that symptoms alone, or even a diagnosis alone, would be enough. This raises the question, though, about whether a hospitalization or fatality related to COVID-19 is recordable before the employer is able to obtain the result of a positive test for COVID-19.
For step 2, the primary question is whether the case is work-related. The Guidance directs that in making this reasonable determination of work-relatedness, employers should apply the following considerations. OSHA recognizes that employers “should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area.” It concludes that it is sufficient in most circumstances that when the employer learns of an employee’s COVID-19 illness, it should:
(1) 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 SARS-CoV-2 exposure. This is “informed” by any other instances of workers in that environment contracting COVID-19 illness.
Further, while OSHA acknowledges there is no specific formula for determining whether the employer met the reasonableness standard, employers should consider the following types of evidence that 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.
Finally, the guidance provides that employers 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. This statement is also mentioned elsewhere in the guidance, where it states that an employer must give “due weight” to the opinion of a medical provider or public health authority as to whether the case is work-related.
Evidence as to whether a COVID illness is work-related should be made “based on the information reasonably available to the employer at the time” of the 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 determination.”
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. OSHA concludes this section by stating that “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.”
Finally, OSHA states that recording a COVID-19 illness “does not, of itself, mean that the employer has violated any OSHA standard.” It also reminds employers that those with 10 or fewer employees and certain employers in low hazard industries have no recording obligations and only need 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.
This information is accurate as of May 21, 2020, and is subject to change based on any new legislation.