Effective May 26, 2020, employers are now required to track whether a Covid-19 illness is work-related and thus reportable, under the new guidance issued by the U.S. Occupational Safety and Health Administration (OSHA). Under the previous policy that employers should focus their efforts on mitigating the effects of Covid-19, most employers were not required to make work-relatedness determination of Covid-19 cases except in limited circumstances.
Under the new guidance, covered employers must now record cases of Covid-19, if the case:
- Is a confirmed Covid-19 case (a positive test);
- Is “work-related” (an event or exposure in the work environment either caused or contributed to an employee to contract the virus); and
- Results in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.
The new guidance continues to recognize the difficulty in determining whether a Covid-19 illness is work-related given the nature of the disease and community spread, especially when an employee has experienced potential exposure both in and out of the workplace. OSHA emphasizes that employers must make a reasonable and good faith inquiry of work-relatedness based on the evidence available to the employer.
According to OSHA, the following instances—unless there is an alternative explanation—indicate when a Covid-19 case is likely work-related:
- Several cases develop among workers who work closely together;
- Illness was contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case; or
- Employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission.
Employers with 10 or fewer employees and certain employers in low hazard industries that are not subject to routine recordkeeping obligations under OSHA need to 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.
The revised enforcement guidance is available at: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance- recording-cases-coronavirus-disease-2019-covid-19. More information on OSHA and Covid-19 is available at https://www.osha.gov/SLTC/covid-19/.
We continue to closely monitor the situation and update this information to provide the latest workplace and legal developments related to Covid-19. We expect your questions and our answers will change as the situation develops. For answers to your specific questions and for the newest developments, please visit our website at www.donnellygross.com/covid-19-resources/ and contact us at Donnelly + Gross at 352-374-4001 or directly by email:
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*This publication is for general information only and intended for clients and friends of Donnelly + Gross. It should not be relied upon as legal advice as the law related to each situation varies. Moreover, workplace law related to Covid-19 is dynamic and changing daily. The sharing of this information does not establish a client relationship.