Department of Labor Clarifies Employers’ Obligation to Report COVID-19 Cases

This week, OSHA issued interim guidance on employers’ duties as they relate to recording cases of COVID-19.

On April 10, 2020, the Department of Labor’s OSHA issued interim guidance on employers’ duties related to reporting cases of COVID-19. This is to clarify employers’ responsibilities when it comes to reporting illnesses.

OSHA’s position—effective immediately and for the duration of the public health crisis—is that employers must report to OSHA any confirmed COVID-19 illness diagnosis that is both (i) work-related, and (ii) involves OSHA general recording criteria.

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19 if the case:

  • is confirmed as a COVID-19 illness;
  • is work-related as defined by 29 CFR 1904.5; and
  • involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

An article by the National Law Review elaborates on that criteria.

A condition is work-related if “an event or exposure in the work environment is either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.” The work environment is the employer’s “establishment” and such “other locations where one or more employees are working or are present as a condition of their employment.”

An injury ordinarily involves OSHA general recording criteria 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, or if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional even if it does not result in death, missed work days, restricted work, job transfer, medical treatment beyond first aid or loss of consciousness.

OSHA treats COVID-19 as a recordable illness if it meets the aforementioned general principles. However, colds and flus are not recordable illnesses.

Still, OSHA does recognize that “employers…may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposure at work” in fields other than healthcare, emergency response and correctional institutions because of the possibility of “community transmission.” So, OSHA will not enforce regulations requiring COVID-19 illness reporting in such fields except where:

  • There is objective evidence that a COVID-19 diagnosis may be work-related (such as a cluster of cases emerge among workers in close proximity without an alternative explanation); and
  • The evidence was reasonably available to the employer, such as from reports by employees or information learned during the employer’s general operation or management of the business.

OSHA says it is aware that with the exception of the healthcare, emergency response and correctional industries (like EMS/EMTs, firefighters, and law enforcement), risk of community transmission is much higher than work-related transmission.

However, OSHA will continue to require that workers in the industries with high, work-environment-transmission risk “make work-related determinations” given their work circumstances. Employers in these industries should continue to evaluate the employee’s work duties and environment to determine whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition, or significantly aggravated a pre-existing condition.

The National Law Review does stress that recording or reporting a work-related injury, illness, or fatality does not mean that the employer was at fault or that an OSHA rule has been violated, or that the employee is eligible for compensation. Failure to report or record workplace illnesses like COVID-19 cases may have significant regulatory consequences, however.

Visit OSHA’s COVID-19 webpage for more information.

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