OSHA Changes Course: Employers Must Now Determine if COVID-19 Infection is Job-Related
As companies start to reopen and more workers are brought back to the workplace, the federal Occupational Safety and Health Administration (“OSHA”) changed its position and is now requiring businesses to be proactive in determining how workers who test positive for COVID-19 became exposed.
The new guidance released on May 19 reversed OSHA’s April directive and now requires all employers with 11 or more employees who must maintain OSHA injury and illness logs to determine if a worker’s COVID-19 case is job-related. This new Guidance can be found here.
This requirement applied initially only to health-care employers, emergency-response providers, and corrections facilities. Given the continued increase in the number of positive cases across the country and as outbreaks are occurring in multiple industries, OSHA decided that all employers need to determine if positive cases are work-related and thus recordable.
OSHA admitted that in many circumstances it will be challenging to determine whether a COVID-19 illness is work-related, especially when a worker has experienced potential exposure both in and out of the workplace. To help guide employers on how to determine if an employee’s positive case is work-related, OSHA identified that the three following factors will be used in determining whether an employer made a reasonable and good faith determination:
- The reasonableness of the employer’s investigation into work-relatedness.
It should be sufficient investigation – in most circumstances – if the employer (1) asks the employee how he believes he contracted the COVID-19 illness; (2) reviews the employee’s work and out-of-work activities that may have led to contracting the illness (but must keep the employee’s privacy in mind), and (3) reviews the employee’s work environment for potential exposure.
- All evidence available to the employer is considered.
Employers must consider all evidence that is reasonably available in making its determination, and must update its determination if new information comes to light.
- The evidence that suggests a COVID-19 illness was contracted at work.
Recognizing that there is not a one-size-fits-all formula, OSHA provides multiple examples of situations that tend to show that an employee’s COVID-19 case is or is not work-related.
Examples of COVID-19 illnesses that are likely work-related include (1) where several cases develop among workers who work closely together, (2) if the illness is contracted shortly after lengthy, close exposure to a customer or coworker who has a confirmed case, and (3) if the employee’s job duties include frequent, close exposure to the public which ongoing community transmission.
Examples of COVID-19 illnesses that are not likely work-related include (1) if a worker is the only one to contract COVID-19 in his vicinity and his job duties do not include frequent contact with the general public (regardless of community spread) and (2) if the worker closely and frequently associates with someone outside of the workplace who is not a coworker, has COVID-19, and exposes the worker during period in which the person is likely infectious.
It is important to remember that recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard. But failing to conduct a reasonable investigation once it is known that an employee has tested positive for COVID-19 could land an employer in hot water.
You can find additional OSHA information and guidance concerning the coronavirus at its website: www.osha.gov/coronavirus.
 This record-keeping requirement does not apply to all employers. Employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations. Rather, these businesses are only required to report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.