Beginning May 26, 2020, employers with more than 10 employees must undertake a reasonable investigation to determine if an employee’s diagnosis of COVID-19 is work-related and recordable under the Occupational Safety and Health Administration (“OSHA”) requirements. On May 19, 2020, OSHA published new enforcement guidance outlining when employers are obligated to record employee COVID-19 cases, and announcing that previously issued enforcement guidance dated April 10, 2020 would be rescinded. The previous guidance only required most non-health care employers to determine if a case of COVID-19 was work-related when the employer was presented with “objective evidence” that the illness was work-related. Now, all employers with OSHA recording obligations must conduct a reasonable evaluation of whether a COVID-19 illness is work-related and thus recordable.
The OSHA guidance acknowledges the difficulty employers face when determining whether a COVID-19 case is work-related. Nevertheless, COVID-19 is a recordable illness and must be reported on the OSHA injury and illness logs if:
- The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention;
- The case is work-related; and
- The case involves one or more of the general recording criteria required by the regulation.
OSHA’s new guidance directs the Agency’s Compliance Safety and Health Officers to consider a number of factors when determining if an employer has met its obligation to make a reasonable determination of whether a COVID-19 case is work-related. The factors that will be considered by OSHA include the following:
- The reasonableness of the employer’s investigation: When employers learn of an employee’s illness they should: (1) ask the employee how the employee believes he or she contracted COVID-19; (2) while respecting employee privacy, inquire about the employee’s activities both at work and outside of work that may have led to the illness; and (3) review the employee’s work environment for potential exposure. Employers are not required to undertake extensive medical inquiries.
- The evidence available to the employer: Employers should consider all information reasonably available in determining whether an employee’s illness is work-related. Any new information received after a work-relatedness determination should be used to evaluate whether an initial determination was reasonable.
- The evidence that COVID-19 was contracted at work: Employers should consider all reasonably available evidence to determine whether an employee contracted COVID-19 at work. In making that determination, employers should consider those factors that demonstrate the illness was likely contracted at work, among them the following:
- If several cases develop among workers who work closely together;
- If an employee’s illness is diagnosed shortly after lengthy close contact with a customer or coworker who has a confirmed case of COVID-19;
- If an employee’s job duties include frequent close contact with the general public in a locale with widespread transmission of COVID-19.
If, after conducting a good faith inquiry, the employer is unable to determine whether the COVID-19 case is work-related, the employer is not required to record the illness.