OSHA Reporting Requirements and COVID-19: An Employer's Duty to Investigate
As most employers are aware, OSHA has rules that require employers to record and report injuries to its employees that occur on the job in some instances. While OSHA does not have promulgated standards that specifically address how these reporting requirements are impacted by COVID-19, OSHA has provided, from time to time, guidance on how it thinks its existing rules regarding reporting injuries applies to employees that contract the Coronavirus. That guidance changes frequently.
In its original guidance in April 2020, OSHA suggested that because of the difficulty in determining where an employee contracted the Coronavirus, only healthcare employers were required to record cases. That has now expanded to all employers with more than 10 employees and includes a requirement that every employer conduct an investigation to determine if the employee’s illness was work-related.
To make that determination, OSHA requires that an employer make a “reasonable” effort to investigate. What is reasonable? OSHA states that is sufficient in most circumstances if an employer discusses with the infected employee how they believe they may have contracted the COVID-19 illness. The employer should also discuss potential workplace environments and out of work activities which may have led to COVID-19 exposure. Further considerations used to determine work-relatedness are whether multiple employees contracted the illness and if the employee in question had lengthy or frequent contact with coworkers or the general public. The full list of considerations can be seen here.
OSHA also lists several factors that suggest that exposure is not likely work-related. For example, if the employee is the only one in the workplace to contract the virus and does not have contact with the general public. Another indicator that the virus was not obtained at work would be if the employee had frequent and close contact with someone outside of work who has COVID-19 and that person is not a fellow employee.
If an employer has made a reasonable and good faith inquiry following the above considerations, and cannot determine whether it is more likely than not that workplace exposure to COVID-19 played a causal role with respect to a particular COVID-19 case, then the employer does not need to record that illness.
Please do not hesitate to reach out to your Critchfield attorney should you have any questions related to the topic of this client alert.