by Alexandra P. Saddik and Jonathan R. Babione
In new guidance that took effect last week, OSHA expects all employers to comply with the recordkeeping requirements for COVID-19 cases that occur in the workplace. This essentially puts employers in a position of needing to investigate positive COVID-19 cases to ascertain whether the cases are work-related.
For a COVID-19 case to be OSHA recordable, the following requirements must be met:
- The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
- The case is work-related, meaning that the employee was exposed to COVID-19 in the work environment; and
- The case causes death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or involves a significant injury or illness diagnosed by a physician or other licensed health care professional.
The most nebulous element here is the question of whether the injury is work-related. While OSHA does not expect employers to do an extensive medical investigation—in part due to employees’ right to privacy—employers are required to make “a reasonable determination of work-relatedness.” If, after a reasonable and good-faith investigation the employer cannot ascertain whether the employee contracted the virus from the workplace, then the COVID-19 case does not need to be recorded.
In a reasonable investigation, employers can ask questions such as how employees believe they contracted COVID-19. Questions pertaining to activities outside of work may also be asked but must be done so with the employee’s privacy in mind. The employer should then assess the work environment for exposure. This includes considering if anyone else in the workplace has been diagnosed with COVID-19.
Other factors that OSHA will consider in assessing whether the employer engaged in a reasonable investigation is the weight of the evidence and whether the employer considered all evidence reasonably available. The weight of the evidence depends on the situation; for example, a COVID-19 case is more likely to be considered work-related if other employees in close proximity contracted the virus and less likely to be considered work-related if the employee spent time with other people outside of work.
COVID-19 guidance related to OSHA and other business requirements is constantly changing as our knowledge grows of how COVID-19 spreads. Ferber Law is here to assist you in navigating these changes.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.