Employers should closely monitor cases of COVID-19 in their workforce, not just to prevent further spread of the disease, but also to determine whether any particular infection is job-related and therefore reportable.

The Occupational Safety and Health Administration (OSHA) has issued updated guidance on the requirement for certain employers to record cases of COVID-19 that will become effective on May 26, 2020. All employers who are required to keep OSHA injury and illness logs—not just healthcare employers, corrections facilities and emergency-response providers—must now determine whether employees’ confirmed COVID-19 cases are reportable.

Employers subject to OSHA’s recordkeeping requirements are responsible for recording COVID-19 cases, if: (1) the case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC); (2) the case is work-related as defined by 29 CFR § 1904.5; and (3) the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7. A confirmed case of COVID-19 means an individual with at least one respiratory specimen who has tested positive for SARS-CoV-2.

The new guidance instructs OSHA compliance safety and health officers to consider the factors below in determining whether employers have met their obligation to report confirmed COVID-19 cases.

According to the new guidance, a COVID-19 case is likely work-related, if there are no alternative explanations, under the following circumstances:

• Several cases develop among workers who work closely together;
• COVID-19 is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19; or
• The job duties of an employee who contracts COVID-19 include having frequent, close exposure to the general public in a locality with ongoing community transmission.

Alternatively, a COVID-19 case is likely not work-related in the following instances:

• The employee is the only worker to contract COVID-19 in his or her vicinity, and their job duties do not include having frequent contact with the general public, regardless of the rate of community spread; or
• Outside the workplace, the employee 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) has exposure to the employee during the period in which the individual is likely infectious.

In determining whether an employer made a reasonable determination of work-relatedness, the guidance provides that 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. Instead, OSHA indicates that it is sufficient for the employer (1) to ask the employee how he or she believes they contracted COVID-19; (2) while respecting employee privacy, discuss with the employee his or her 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, including any other instances of workers in that environment contracting COVID-19 illness. If, after a reasonable, good faith inquiry, the employer cannot determine whether exposure in the workplace played a causal role to a particular case of COVID-19, the employer does not need to record that illness.

While the guidance explains that recording an illness does not necessarily mean that the employer violated any OSHA requirement, it makes clear that employers are nevertheless obliged to take reasonable actions in response to all COVID-19 cases potentially impacting the workplace.

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.

What This Means for Employers

Many employers with more than 10 employees are required to keep a record of serious work-related injuries and illnesses, now including confirmed cases of COVID-19 illness. (OSHA has provided a list of covered industries and a list of exempted low-risk industries.) For more guidance regarding OSHA’s recordkeeping requirements, employers can reference a detailed guidance. Employers with 10 or fewer employees and those in low-hazard industries must also report work-related COVID-19 illnesses that result in an employee fatality or employee in-patient hospitalization (or, if applicable, the loss of an eye).

Employers should closely monitor cases of COVID-19 in their workforce, not just to prevent further spread of the disease, but also to determine whether any particular infection is job-related and therefore reportable. This will require thoughtful and diligent work on behalf of human resources and management teams, in conjunction with the employee and medical providers, to satisfy OSHA’s reporting requirements. Employers failing to comply with OSHA’s recordkeeping requirements are subject to potential penalties of up to $13,494 per violation, and up to $134,937 for each willful or repeated violation.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Jonathan D. Wetchler, Meredith Grant, or the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.