As we begin the process of reopening and employees return to the workplace, private and public sector employers are faced with a vast and continually changing set of requirements related to the health and safety of their employees and the public. Chief among these requirements is an employer’s obligation to record confirmed cases of COVID-19 contracted by employees in the workplace.

The federal Occupational Safety and Health Administration (OSHA) has published Revised Enforcement Guidance for Recording Coronavirus Cases, which will take effect on May 26, 2020. The revised guidance will supersede OSHA’s previous guidance on case recording and remain in effect until further notice.

Key Components of OSHA’s Updated COVID-19 Recording Guidance  

Under OSHA’s normal record-keeping requirements, COVID-19 is a recordable illness if an employer determines that it is work-related. Under current circumstances, determining whether a case of COVID-19 is work-related ranges from extremely difficult to impossible. OSHA’s updated reporting guidance takes the difficulty of determining whether a case of COVID-19 is work-related into account.

OSHA will take the following factors into account when determining whether an employer met its obligation to determine work-relatedness and record confirmed COVID-19 cases. 

1. The reasonableness of the employer's investigation into work-relatedness.

When an employer learns of an employee’s COVID-19 illness, it should make the following inquiries to determine work-relatedness:
 

• Ask the employee how he/she believes he/she contracted the COVID-19 illness; 
• While respecting employee privacy, discuss with the employee his/her work and out-of-work activities that may have led to the COVID-19 illness; and
• Review the employee’s work environment for potential COVID-19 exposure (this review should be informed by any other instances of workers in the work environment contracting COVID-19).

2. The evidence available to the employer. 

The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee’s COVID-19 illness, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.

3. The evidence that a COVID-19 illness was contracted at work. 

OSHA will take into account all reasonably available evidence, as described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a simple formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:

An employee’s COVID-19 illness is likely work-related: 
 

• When several cases develop among workers who work closely together and there is no alternative explanation (e.g., sick family members); 
• If it is 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; or
• If job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

An employee’s COVID-19 illness is likely not work-related:
 

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

The opinions of medical providers, public health authorities, or the employee as to how the illness was contracted will be given considerable weight by OSHA.

Employer Takeaways

This new guidance provides several takeaways for employers as workplaces reopen to employees and the public.

1. Recording a COVID-19 case does not mean the employer violated OSHA standards.  It is important for employers to remember that recording a work-related case of COVID-19 does not, in and of itself, mean that the employer violated OSHA standards. However, employers must follow guidelines from OSHA, the CDC, and state and local authorities to prevent the spread of COVID-19 in the workplace. The duty to provide a safe workplace and the duty to report work-related illnesses are related but independent obligations.

2. Develop a policy for investigating and recording consistent with OSHA guidance.  Employers should draft or update their policies for investigating and recording confirmed cases of COVID-19 in the workplace. Such policies should conform to the OSHA guidance described above and cover three main topics: (1) Investigation of Confirmed Cases; (2) Review of Evidence to Determine Work-Relatedness; and (3) Recording of Work-Related cases.      

3. Stay abreast of changes to federal, state, and local workplace safety requirements.  As the public health situation changes, and as more is learned about how the virus spreads, workplace safety requirements are likely to change. While Barran Liebman will continue to publish Alerts on new laws, rules, and regulations, employers should implement a system or policy to stay abreast of changes and ensure compliance. The following non-exhaustive list of resources will aid employers in maintaining up-to-date policies and practices:
 

• OSHA COVID-19 Information
• Oregon Health Authority COVID-19 Requirements for Employers
• Washington Department of Labor & Industries COVID-19 Requirements for Employers

If you have questions about your obligations under OSHA’s updated reporting guidance or general questions about workplace safety policies during the COVID-19 pandemic, please contact Trevor Caldwell at tcaldwell@barran.com or (503) 276-2117.