OSHA Releases Guidance on the Work-Relatedness Criteria for Recording Cases of Covid-19
Contact Clara (C.B.) Burns, Charles C. High, Jr., Michael D. McQueen and Gilbert L. Sanchez -
June 2, 2020
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Recognizing that confirmed cases of COVID-19 have now been found in nearly all parts of the United States, the Occupational Safety and Health Administration (“OSHA”) announced it was exercising its enforcement discretion to provide clarity regarding recordable COVID-19 cases. Because of the nature and transmission of COVID-19, it is difficult to determine whether a COVID-19 diagnosis is work-related, especially if an employee has experienced exposure both in and out of the workplace.
Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness and employers are responsible for recording cases of COVID-19, 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; and
3. The case involves one or more of the general recording criteria.
Recording a COVID-19 illness does not itself mean that the employer has violated any OSHA standard.
In determining whether an employer has complied with its obligation to make a reasonable determination of work-relatedness, OSHA compliance safety and health officers will consider the following:
• The reasonableness of the employer's investigation into work-relatedness. This implicitly requires an investigation whenever an employee is diagnosed with COVID-19. When an employer learns of an employee's COVID-19 diagnosis the employer should (1) ask the employee how he believes he contracted COVID-19; (2) discuss with the employee his work and out-of-work activities that may have led to the COVID-19 diagnosis; and (3) review the employee's work environment for potential COVID-19 exposure.
• The evidence available to the employer. The evidence that a COVID-19 diagnosis was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee's COVID-19 illness, then that information should be taken into account to determine whether the COVID-19 diagnosis is work-related.
• The evidence that COVID-19 was contracted at work. Employers should take into account all reasonably available evidence to meet their recording obligation. According to OSHA this cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness such as:
o COVID-19 diagnosis are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation;
o An employee's COVID-19 diagnosis 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;
o An employee's COVID-19 diagnosis 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;
o An employee's COVID-19 diagnosis is likely not work-related if the employee is the only employee 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; and
o An employee's COVID-19 diagnosis 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.
If after a reasonable and good faith inquiry, the employer cannot determine whether it is more likely than not that the exposure in the workplace contributed to the cause of a COVID-19 diagnosis, the employer does not need to record that COVID-19 diagnosis. This enforcement guidance took effect on May 26, 2019. Given the new guidance employers should consider implementing procedures for investigating COVID-19 cases reported by employees to determine whether a case is recordable.
If you have any questions about this guidance or how to notify your workforce of a COVID-19 diagnosis of an employee, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.
Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness and employers are responsible for recording cases of COVID-19, 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; and
3. The case involves one or more of the general recording criteria.
Recording a COVID-19 illness does not itself mean that the employer has violated any OSHA standard.
In determining whether an employer has complied with its obligation to make a reasonable determination of work-relatedness, OSHA compliance safety and health officers will consider the following:
• The reasonableness of the employer's investigation into work-relatedness. This implicitly requires an investigation whenever an employee is diagnosed with COVID-19. When an employer learns of an employee's COVID-19 diagnosis the employer should (1) ask the employee how he believes he contracted COVID-19; (2) discuss with the employee his work and out-of-work activities that may have led to the COVID-19 diagnosis; and (3) review the employee's work environment for potential COVID-19 exposure.
• The evidence available to the employer. The evidence that a COVID-19 diagnosis was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee's COVID-19 illness, then that information should be taken into account to determine whether the COVID-19 diagnosis is work-related.
• The evidence that COVID-19 was contracted at work. Employers should take into account all reasonably available evidence to meet their recording obligation. According to OSHA this cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness such as:
o COVID-19 diagnosis are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation;
o An employee's COVID-19 diagnosis 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;
o An employee's COVID-19 diagnosis 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;
o An employee's COVID-19 diagnosis is likely not work-related if the employee is the only employee 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; and
o An employee's COVID-19 diagnosis 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.
If after a reasonable and good faith inquiry, the employer cannot determine whether it is more likely than not that the exposure in the workplace contributed to the cause of a COVID-19 diagnosis, the employer does not need to record that COVID-19 diagnosis. This enforcement guidance took effect on May 26, 2019. Given the new guidance employers should consider implementing procedures for investigating COVID-19 cases reported by employees to determine whether a case is recordable.
If you have any questions about this guidance or how to notify your workforce of a COVID-19 diagnosis of an employee, please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424.
