If an employee tests positive for or is diagnosed with COVID-19, must that be recorded as a work-related illness on Occupational Safety and Health Administration (OSHA )records? OSHA says COVID-19 is a work-related illness if the virus is contracted at work. That can be very difficult to determine. Employers should not presume a COVID-19 event is work-related unless there are clear facts to support that conclusion.
In recent guidance taking effect May 26, 2020, OSHA clarified its expectations for employer analysis of COVID-19 job-relatedness. OSHA considers it the employer’s duty to evaluate the facts based upon, among other things, information gathered from the employee. For example, OSHA expects employers to:
- Ask the employee how he believes he contracted COVID-19;
- Ask the employee about out-of-work activities that may have led to the COVID-19 illness;
- Consider whether there have been other instances of employees in the work environment contracting COVID-19.
Find the OSHA guidance here.
This puts employers in a difficult position. Asking employees about possible exposure to the virus away from work may infringe on employee privacy. Also, concluding that a COVID-19 case is work-related may work against the employer’s interests in workers’ compensation or if an employee sues the company claiming the company did not take adequate measures to protect against workplace exposure. Employers should make good faith efforts to follow OSHA recording guidance, but should be cautious about documenting what some might try to argue is an “admission.”
Here are suggested action steps:
- This OSHA guidance applies only if an employee tests positive for, or is diagnosed with, COVID-19. It does not apply to people who are merely symptomatic.
- Keep clear notes concerning your inquiries. Treat the notes the way you treat confidential employee medical records. Retain the notes for as long as you keep other personnel file records, but retain them in a separate confidential file.
- Even if you decide to record a COVID-19 case on your OSHA records, that does not mean there is proof the case is work-related. You should keep an internal document saying that you have recorded the case in consideration of OSHA rules, but that you do not feel there is sufficient evidence to conclude the case is work-related.
Also remember that if you log a case as an OSHA recordable incident you may also have to report the case to OSHA directly. Occupational illnesses and injuries must be reported to OSHA if they result in a fatality within 30 days of the workplace exposure or if they result in in-patient hospitalization within 24 hours of workplace exposure.
Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.