When employees initially began returning to work last April, OSHA guidance mandated that only certain employers would be required to report work-related coronavirus illnesses. Recently, OSHA updated its Guidance for Recording Cases of Coronavirus Disease. All employers covered by the Occupational Safety and Health Act are now required to investigate and determine whether employees who have Covid-19 contracted it at work.

Is my business covered?

The OSHA Act covers most private sector employers and their workers. If your business has fewer than 10 employees or falls into one of OSHA’s low-hazard NAICS classifications, then you may be exempt from the reporting requirements. However, most businesses will not meet those criteria. This means your business likely has a reporting obligation and must report work-related coronavirus illnesses according to the revised OSHA guidance.

Is it a recordable illness?

There are three criteria for determining when Covid-19 is a recordable illness that must be recorded on the employer’s OSHA 300 log:

1. A confirmed case of Covid-19, as defined by the Centers for Disease Control and Prevention;
2. That is work-related as defined by 29 C.F.R. § 1904.5 (an illness is work-related if an event or exposure in the work environment caused or contributed to the resulting condition); and
3. The case involves one or more of the general recording criteria set forth in 29 C.F.R. § 1904.7 (an illness is recordable if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness).

This guidance creates some difficulty for employers attempting to determine whether a positive coronavirus test is work-related, especially when employees are potentially exposed both in and outside of the workplace. Employees aren’t confined to the work environment, and a person who tests positive could have picked the virus up in another location. In light of this difficulty, OSHA looks to whether the employer made a reasonable effort to determine if the exposure is work-related. Of course, employers must simultaneously balance the employee’s privacy interests. Employers aren’t required to ask extensive medical questions that may violate the Americans with Disabilities Act or other laws.

OSHA provides a number of things you, as the employer, can do when trying to determine whether an employee’s positive test must be reported. Examples of reasonable effort include:

1. Asking the employee how he believes he contracted the illness;
2. Discussing with the employee what work and out-of-work activities may have led to the illness;
3. Reviewing the employee’s work environment for possible Covid-19 exposure, including whether other employees have contracted Covid-19, the employee’s job duties, and whether the work areas allow for proper social distancing measures.

Employers should take care to weigh the reasonably available evidence in favor of or against work-relatedness. Covid-19 illnesses are more likely work-related when several cases develop among employees and there are no alternative explanations; when the illness manifests shortly after close exposure to a customer or coworker with a confirmed case; or when an employee’s job duties include frequent exposure to the general public. Conversely, an illness is likely not work-related if the employee has little to no contact with the general public and is the only worker to contract Covid-19.

If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of Covid-19, the employer does not need to record that Covid-19 illness. If the illness is determined to be work-related, it should be recorded as a respiratory illness on the OSHA Form 300. As a matter of public health and safety, it is important for employers to investigate and appropriately respond to any suspected instance of Covid-19 regardless of whether it is determined to be work-related.  

Post prepared by Jennifer Brumfield, Montgomery Jonson LLP law clerk, and Attorney Linda Woeber.