Member Article

On the heels of growing pressure and mounting criticism from Congress and labor unions that the Occupational Safety and Health Administration (OSHA) was not doing enough to protect workers, OSHA issued new guidance expanding employers’ reporting requirements related to COVID illnesses.

Under guidance issued May 26, OSHA now requires all employers normally subject to OSHA’s recording requirements, not just those in the health care industry, emergency-response organizations and correctional institutions, to investigate whether a COVID case was work-related. Employer’s with 10 or fewer employees and certain employers in low hazard industries that have no OSHA recording obligations need 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. Following that investigation, employers must report COVID illnesses on OSHA 300 logs when:

1. There is a confirmed case;
2. It is work-related; and
3. The illness results in one or more of the OSHA recordable criteria (i.e., death, days away from work, restricted work or the transfer to another job, medical treatment beyond first aid, or the loss of consciousness).

Though OSHA acknowledges the difficulty in determining whether a COVID case is actually work-related, it still expects employers to make a “reasonable determination” on whether a case originated at work. Knowing that most employers are not medical professionals, OSHA has indicated that, in most cases, an employer will satisfy its compliance obligations by:

• Asking an employee how he or she believes the illness was contracted;
• Asking an employee about his or her activities (both inside and outside of work) and whether those activities may have led to the illness; and
• Looking at the work environment, including the employee’s work area, to determine whether certain areas pose a higher risk of exposure (e.g., crowded areas and those that do not allow for social distancing) and whether other employees assigned to the same area/floor have also fallen ill.
• In analyzing an employer’s reasonableness determination, several assumptions can be made by an employer to determine whether an illness is more likely or less likely to be work-related.
  
  

According to OSHA, COVID is more likely work-related when:

• Multiple cases develop among employees working together or within the same vicinity;
• It is contracted shortly after close exposure to a customer or coworker with the illness; and
• An employee’s job responsibilities require him/her to be in close proximity to members of a community where there is ongoing or heightened community transmission.