The Occupational Safety and Health Administration on April 10 released interim guidance that relieves most employers of their duty to determine whether a COVID-19 case is work-related. But not every employer is off the hook for recording coronavirus cases.
OSHA requires employers to keep records of workplace injuries and illnesses that result in death, days away from work, medical treatment beyond first aid, loss of consciousness or restricted work.
But with the coronavirus so widespread, determining whether a COVID-19 case is work-related — and thus recordable on OSHA logs — has proved difficult.
The new guidance says that in areas where there is ongoing community transmission of the coronavirus, most employers will not be required to determine whether a COVID-19 infection happened at work, unless there is “objective evidence” the case is work-related and the evidence is “reasonably available to the employer.”
The interim guidance acknowledges it is difficult for employers in most industries to determine whether a coronavirus case is work-related and is instead intended to help them focus on implementing workplace hygiene and safety measures. The interim policy will be in effect until further notice.
WORK-RELATED ILLNESS
The task of determining whether an infectious disease was transmitted at work has always been tricky, according to Sherman & Howard member Pat Miller. The common cold and flu are excluded from OSHA recording requirements, he said, so the need to determine work-relatedness for illness only comes up in rare circumstances, such as a cluster of hepatitis cases among workers.
“Frankly, before COVID, we hadn’t had to deal with this a whole lot because it just doesn’t come up that often,” Miller said. “And that’s why, when OSHA originally said [employers] are going to have to record [COVID-19 cases], that caused a lot of angst among employers.”
“[The new guidance] is making it a higher burden to record than a regular injury or illness because you’ve got to have that objective evidence piece,” said Fisher Phillips partner Kristin White. “And with the way this virus travels, there may be no way that you have any objective evidence that it came from a co-worker.”
As for which cases would still be considered a workplace illness under the new guidance, Miller said clusters of cases among coworkers or a workplace with disproportionately high rates of infection compared to the rest of the community would meet the “objective evidence” burden for determining work-relatedness and recording. A COVID-19 case might be recordable if an employee’s coworker had previously tested positive and the employee otherwise had no known exposure through family or other non-work contacts, White said.
Miller noted the latest memo doesn’t address whether the new guidelines affect OSHA reporting requirements. Typically, employers are required to report any work-related deaths to OSHA within eight hours, and hospitalizations, amputations or loss of an eye must be reported within 24 hours.
“As I read this memo … as employers now don’t have to make this work-relatedness determination, they also don’t have to call OSHA to report their COVID-19 fatalities should they have them,” he said.
NOTABLE EXCEPTIONS
Under the latest guidance, employersUnder the latest guidance, employers in the healthcare industry, emergency response organizations and correctional institutions must still make determinations about whether an infection is work-related.
It’s not clear whether the exception applies strictly to hospitals, prisons and other employers that fall directly into those categories, or if it extends to outside vendors that service those facilities.
Miller said that for a delivery company that exclusively serves the healthcare industry, “it’s probably safe to say that OSHA would take the position that, yeah, you’re in that industry.” But a company that does deliveries to all sorts of businesses could more easily make the case they don’t need to determine work-relatedness in COVID-19 cases.
“I look at the healthcare industry as being a broad umbrella,” White said. “I think if people are on the fringes of that, they’d want to seek counsel [about whether] they fall into that or not.”
According to Miller, workers whose COVID-19 cases are deemed work-related have the right to request their names be left off their employers’ OSHA logs. The logs are submitted electronically to OSHA and can be made available to unions, he said, so employers should be aware of privacy issues and the fact they might get requests from employees who don’t want their names listed.
PROTECTIVE MEASURES
While the guidance relaxes OSHA recording requirements for most industries, it doesn’t mean employers should turn a blind eye to COVID-19 cases among employees.
“The main reason employers want to keep track of exposures in the workplace right now is to make sure they can keep their workplaces healthy and safe,” Miller said.
Tracking cases among employees, even if not reported to OSHA, can help employers come up with quarantine and other measures to keep their workers safe.
Keeping track of cases internally could also be important for defending employers against future legal action. Workers’ compensation claims have already ticked up in some states due to the coronavirus, and earlier this month, the family of a Walmart employee who died of COVID-19 sued the retailer, alleging negligence and failure to take proper safety precautions.
“We’ve seen these wrongful death lawsuits being filed [that are] trying to sue around workers’ comp claiming that, based on the allegations, there was some type of intentional act,” White said.
Although the latest memo is intended to let employers focus on workplace hygiene rather than making “difficult work-relatedness decisions,” OSHA has limited its guidance on safety measures to general advice on sanitation and personal protective equipment use. “With the lack of an actual COVID-19 standard or any enforceable mechanism that they can tell employers exactly what to do, their advice, unfortunately, has to be kind of general,” Miller said.
“What OSHA has done is pretty much track and recommend that employers follow the CDC guidelines,” White said. The CDC’s coronavirus-related guidelines include handwashing protocols and recommendations on the use of face coverings.
— Jessica Folker