Last week, OSHA issued new guidance requiring employer recording of work-related COVID-19 cases.  These requirements went into effect on May 26, 2020.  While OSHA’s guidance memo acknowledges that it may be difficult for employers to determine whether a COVID-19 illness is “work-related,” the memo still requires employers to make good faith determinations as to whether the virus was contracted in the workplace.   The guidelines require employers to take into account information “reasonably available” to determine whether a particular individual’s COVID-19 illness is work-related, and to also take into account new information learned after the employee’s diagnosis, if available, to make a reasonable work-relatedness determination.

OSHA has given a few examples of “likely” and “not likely” work-related scenarios to help employers make this determination:

Likely work-related:

• When several cases develop among workers who work closely together and there is no alternative explanation.
• If illness 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.
• If worker’s duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

Likely not work-related:

• If the employee is the only worker to contract COVID-19 in the vicinity and the employee’s job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
• If 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.

Under the new guidelines, if an employer undertakes a reasonable and good faith inquiry using the factors above, and still cannot determine whether it is more likely than not that exposure in the workplace caused a particular case of COVID-19, the employer does not need to record that COVID-19 illness.  

If you determine that you have a work-related COVID-19 case, you must code the occurrence as a respiratory illness on the OSHA Form 300.  If an employee voluntarily requests that their name not be entered on the log, you should insert “privacy case” instead of the employee’s name.  

Reporting Requirements

In addition to the recording requirement, all employers are required to report to OSHA any workplace incident that results in (i) in-patient hospitalization (i.e., formal admission to the in-patient service of a hospital or clinic for care or treatment), or (ii) death.  Important for COVID-19 issues, employers do not have to report an in-patient hospitalization that involves only observation or diagnostic testing.  They only have to report hospitalization that involves care or treatment.

• Timing of Reporting.  The employer must report the incident within (i) 24 hours of learning that the hospitalization was the result of a work-related incident, or (ii) eight hours of learning that the death was the result of a work-related incident.
• What to Provide when Reporting.  When reporting an incident, employers should be prepared to provide: a brief description of the work-related incident, the location of the work-related incident; the time of the work-related incident; the type of reportable event (i.e., in-patient hospitalization); the name of the employee who suffered the event; and a contact person and their phone number.

Similar to the recording requirement, if you complete the COVID-19 “work-related” analysis above and cannot conclude it was work-related, then you do not need to report a hospitalization or fatality to OSHA.  

COVID-19 “Work-Relatedness” Evaluation Form

Our team has put together a COVID-19 “work-relatedness” evaluation form for employers to use if COVID-19 cases arise in the workplace. Please do not hesitate to reach out to Sarah Crippen (scrippen@bestlaw.com), Kyle Hardwick (khardwick@bestlaw.com) or Ashleigh Leitch (aleitch@bestlaw.com)  if you have any questions or need further guidance regarding a specific COVID-19 case in your workplace.