According to OSHA, employers must "...record and report work-related fatalities, injuries, and illnesses." Standard 29 CFR Part 1904.5 gives details about how to determine whether an illness/injury was work-related. This has always been somewhat complicated, as there are a variety of circumstances that can create gray areas about how or when an employee was injured or taken ill.
Given the fast-spreading nature of COVID-19, OSHA recognized the difficulty in determining whether an employee contracted the disease at work. In April, the organization issued a memorandum about when companies should report COVID-19 cases among their employees. At the end of May, OSHA made an important update.
The April memorandum made it clear that reporting COVID-19 cases was required under standard 1904. However, OSHA wanted employers to focus on disease prevention in the workplace and decided not to enforce COVID-19 reporting for companies outside healthcare facilities, emergency response teams, and correctional institutions—unless there was clear evidence that the employee contracted the disease at work. Since the disease was spreading so rapidly, OSHA was concerned that employers would spend too many resources on investigation and not enough resources on prevention.
As of May 26 and until further notice, OSHA basically returned to the original standard: all companies (aside from those who qualify for partial exemptions) must make a reasonable investigation to determine whether a COVID-19 case was indeed work-related.
When Do Employers Have to Report COVID-19 Cases?
The case must meet all three of these requirements for reporting:
"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 as defined by 29 CFR § 1904.5; and
"The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7."
Confirming a case is easy enough with a test, and it's clear if the case meets one of the general recording criteria (death, days away from work, medical treatment, etc. as outlined in standard 1904.7). However, determining whether the case is work-related is more difficult. OSHA acknowledges this and offers guidelines for conducting the investigation.
How Can Employers Determine If an Employee Contracted COVID-19 at Work?
There are no hard and fast rules in this ever-changing situation. However, there are some basic guidelines that will help employers in this difficult situation.
Employers are not expected to dig deep into medical histories and should not violate employee privacy. However, if an employee tests positive for COVID-19, the employer can ask where the employee believes he/she may have contracted the disease and inquire about basic activities that could have led to the illness. For example, if the employee works in an office alone and doesn't deal face-to-face with customers, but he/she attended a birthday party at a friend's house last week and lives in a household with people who work with the public, it may be reasonable to assume the illness was contracted outside of work, and therefore is not reportable as a work-related illness.
In looking more closely at whether the illness could have been contracted at work, you'll want to consider evidence like this:
- Did several cases of the disease develop among employees who work closely together?
- Did an employee test positive shortly after prolonged contact with a customer or co-worker who also tested positive?
- Does the COVID-19 infected employee frequently work with the public in an area of ongoing community transmission?
- Are there any alternative explanations for the above?
Check with OSHA for regular COVID-19 updates.
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