Under new Occupational Safety and Health Administration (“OSHA”) guidance, moving forward employers must now investigate how any Covid-19 positive employees may have contracted the virus. If the cause of the infection was likely work-related, the employer must record it as an “occupational illness.”
The new guidance, which went into effect on May 26, 2020, is stricter than the April 2020 guidance it rescinded, which only applied to frontline and essential workers. The agency has recently come under fire for its loose and industry-specific approach. As states begin to reopen and many more employees return to work, OSHA recognized the immediate need for guidance for the country’s non-essential workforce.
Who does the reporting requirement apply to?
Employers with 11 or more employees in most industries must now keep a record of all work-related Covid-19 cases. Employers with 10 or fewer employees and certain employers in low hazard industries face much less stringent reporting requirements. They need only report work-related Covid-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye. See 29 CFR §§ 1904.1(a)(1), 1904.2
What must employers now do?
When an employer learns that an employee has a confirmed case of Covid-19, they must launch an investigation into how the employer may have contracted the virus to determine whether it was work-related.
This is not meant to be an extensive medical inquiry, and the government is advising employers to respect employee privacy and confidentiality. However, the employer may ask the employee how they believe they contracted the virus. They may also discuss the employee’s activities at work and outside of work that may have led to the infection. Finally, they should review the employee’s work environment for possible exposure, especially to other infected persons.
What does “work-related” mean?
OSHA recognizes that “work-relatedness” is ambiguous and employers are not infectious disease experts. The new guidance breaks down examples of evidence that weigh for and against work-relatedness.
For example, if several cases developed among employees who work closely together, or the employee’s job duties require frequent and close exposure to the public where there is ongoing community transmission, this tips the scale toward the infection being work-related.
Alternatively, if no other workers in the infected worker’s vicinity test positive, or the employee has had close contact with a Covid-19 positive family member or friend, it is much less likely the infection was work-related.
How will OSHA enforce this?
Recording a case does not mean an employer has violated the law. Mandating and then examining employer records is merely one way that OSHA determines whether penalties should be assessed against employers for failing to protect employees from workplace injury or illness. OSHA’s current enforcement approach will be tailored to the level of community spread in different regions.
The agency said it will continue to exercise enforcement discretion with regard to employer’s work-related determinations. When determining whether an employer has made a reasonable determination that a Covid-19 case was work-related, OSHA will examine the reasonableness of the employer’s investigation, and the evidence of work-relatedness available to the employer at the time and information learned later.
How will this affect workers’ compensation?
It is not yet clear whether Covid-19 is already compensable under workers’ compensation, though at least one state has already decided to cover healthcare workers and first responders who contracted the virus on the job. In New York State, workers may be compensated if they are disabled by an “occupational disease,” which must arise from conditions to which a specific type of worker is exposed, such as lead poisoning arising from processes involving contact with lead. In other words, there must be a “recognizable link” between the disease and some distinctive feature of the worker’s job.
Despite calls from the New York State Nurses Association and the state AFL-CIO, the New York State Workers’ Compensation Board has yet to acknowledge Covid-19 as an “occupational disease” for front-line workers. Covid-19 is not yet among the 30 occupational diseases recognized in § 3(2) of the Workers’ Compensation Law, but New York State Assemblywoman Aravella Simotas has introduced a bill to amend the law to classify Covid-19 an “occupational disease.” Until that happens, the burden is on the employee or their survivors to prove exactly how they contracted the disease in their workplace, and the new OSHA reporting requirement will presumably make doing so much easier.
Written by Summer Law Clerk Kacie Candela
