Most hope that COVID-19 won’t hit close to home or work. But what do you do if an employee tests positive for the virus?
On May 19, 2020, the Occupational Health and Safety Administration (“OSHA”) issued new guidance on COVID-19 recordkeeping requirements for employers. OSHA clarified that COVID-19, indeed, is a recordable respiratory illness—but whether you have to report it to OSHA depends.
When are you responsible for reporting COVID-19 cases to OSHA?
In general, you are responsible for reporting cases of COVID-19 if your employee’s case meets all of the following:
- The individual has a confirmed case of COVID-19
- The case is work-related (see more info on this in the chart below)
- The case results in any of the following: death, days away from work, restricted work, medical treatment beyond first aid, loss of consciousness, orsignificant injury.
Are all employers responsible for reporting cases of COVID-19?
You are exempt from this reporting requirement if your business either:
- Employs 10 or fewer employees
- Is a Low-hazard industry employer (this link lists OSHA’s definition of “low-hazard employers” in Appendix A).
Even if your business falls into one of these categories, you should still monitor any workplace COVID-19 cases, especially if you discover that the illness fits OSHA’s definition of “work-related”.
If any work-related COVID-19 illness results in a fatality or patient hospitalization – regardless of the above exemptions – you must record the illness with OSHA. Work-related fatalities must be reported to OSHA within 8 hours, and hospitalizations must be reported within 24 hours.
When do you classify a COVID-19 illness as work-related?
OSHA has given the employer considerable discretion in determining whether a COVID-19 case is work-related. But it has issued some guidelines for employers to consider.
After you learn that an employee has tested positive for COVID-19, you should conduct an inquiry into the illness. You need not undertake extensive medical inquiries and should be mindful of your employee’s privacy. OSHA has outlined an acceptable method of investigation:
- Ask the employee how they believe they contracted COVID-19.
- Discuss with the employee possible activities – both work and out-of-work – that may have led to the illness.
- Review the employee’s work environment, especially if there are other instances of workers who tested positive in the same environment.
Evidence of work-relatedness
The determination of work-relatedness should be grounded in any reasonable evidence that is available to you at the time of the inquiry. OSHA has provided some insight on what it considers strong evidence in favor for or against work-relatedness determinations.
|Evidence||Likely work-related||Likely not work-related|
|Several cases develop among employees who work closely together||X|
|Contracted illness after close contact with customers/clients who have confirmed COVID-19 cases||X|
|Job requires frequent and close exposure to the public in an area with ongoing community transmission||X|
|Only worker to contract COVID-19 in their vicinity and job does not require close contact with the public||X|
|Frequent contact with non-employees (i.e. family, friends) outside work who tested positive for COVID-19||X|
What if you are still unsure about the work-relatedness classification?
OSHA has noted the difficulty of determining whether a COVID-19 case is work-related. To that end, if, after your good faith inquiry, you cannot determine whether it is more likely than not that the workplace caused the COVID-19 case, you need not report the case. And if you do, in the words of OSHA itself, be assured that recording a COVID-19 illness “does not, of itself, mean that the employer has violated any OSHA standard.”
The purpose of the recordkeeping guidelines is to help you respond appropriately to any COVID-19 cases. Even if an employee contracts COVID-19, if you use the steps outlined above to conduct a thorough work-relatedness inquiry and record the process, you effectively minimize your risk of violating OSHA standards and you better protect your workers. An OSHA reporting tutorial can be found at: https://www.osha.gov/recordkeeping/tutorial/508.html
To download and print our easy-to-follow guid on how/when to report COVID-19 cases to OSHA, click the button below.