Employers preparing to reopen offices and worksites have some new reporting requirements from the Occupational Safety and Health Administration (“OSHA”) of the United States Department of Labor. The new requirements, effective May 26, 2020, spell out when an employer must record and report a COVID-19-related incident. Here’s what you need to know.

Who is affected. As with other OSHA reporting requirements, the new guidance – which applies to all employers -- differentiates between “low-risk” (“partially-exempt”) industries and other “high risk” industries.

Most “low-risk” industry employers (e.g., advertising, entertainment production, retail, office work) remain partially exempt from OSHA requirements to record and report work-related injuries (COVID-related or otherwise). Exception: “low-risk” industry employers must record and report work-related injuries that result in in-patient hospitalization, death, amputation or loss of an eye. 

How to determine whether the COVID-19 illness is “work-related.” The new guidance provides a roadmap to help employers determine whether a worker’s COVID-19 illness was a “work-related injury” so that appropriate follow-up in the event of hospitalization or death can be done. 

Reasonableness of investigation: Where a COVID-19-positive employee has been hospitalized or died, “low-risk” industry employers (which, again, includes advertising, entertainment production, retail, and office work) – must take the following steps:

(1) ask any COVID-19-positive employee how the employee believes the employee contracted the COVID-19 illness;

(2) while respecting employee privacy, discuss with the employee 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 COVID-19 exposure (i.e., whether any other employees in that environment contracted COVID-19). 

“High-risk” industry employers must take the foregoing steps to determine whether an employee’s COVID-19 positive test result was “work-related” regardless of whether the employee is able to recover at home or is admitted to the hospital.

Evidence available to the employer: Employers should consider all evidence reasonably available at the time the work-relatedness determination is made, and take into account any information that becomes available later. 

Evidence that the illness was contracted at work: While the Guidance acknowledges there is not “a ready formula,” the evidence below may weigh in favor of or against work-relatedness. Employers should credit any evidence of causation provided by medical providers, public health authorities, or the employee. A COVID-19 case is likely work-related if:

  • Several cases develop among workers who work closely together and there is no alternative explanation.
  • It was 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.
  • The employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

A COVID-19 case is likely not work-related if:

  • The employee is the only worker to contract COVID-19 in the employee’s vicinity, and the employee’s job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • The employee, 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 the reasonable and good faith inquiry described above, “the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19,” the employer does not need to record or report that COVID‑19 illness. Employers who fail to promptly report work-related COVID-19 cases, or for partially-exempt employers, fail to promptly report work-related hospitalizations or deaths may be subject to civil penalties.

Takeaway. As a practical matter, these requirements mean that all employers must monitor employee illness-related absences and follow up with employees who have reported COVID-19 symptoms to determine whether the employee has tested positive for COVID-19. As noted above, for employers subject to recording requirements (i.e. “high-risk” industries), an employee’s positive COVID-19 test result will trigger the requirement to investigate whether the infection was work-related, regardless of whether the employee is able to recover at home or is admitted to the hospital. “Low-risk” industry employers must investigate whether the infection is work-related only if the employee is hospitalized or illness results in death.

If you have questions about the new OSHA guidance, or about other employment-related return-to-work issues, please contact Wendy Stryker, Tricia Legittino or any other member of the Frankfurt Kurnit Employment Compliance, Training & Litigation Group.