In the July issue of Insulation Outlook, Auman, Mahan and Furry attorneys Abbie White and Gary Auman addressed OSHA guidance concerning the recording of COVID-19 cases. As the pandemic continues, Abbie White addresses employers’ questions.

Do I need to record an employee’s case of COVID-19 on my OSHA log?

This section applies to all employers with 11 or more employees. OSHA has stated that COVID-19 is a recordable illness and must be recorded on an employer’s 300 log if the following 3 criteria are met:

1. The employee has a confirmed case of COVID-19, as defined by the Centers for Diseases Control and Prevention (CDC)—meaning that the employee has had at least 1 respiratory specimen that tested positive for SARS-CoV-2;
2. The case is work related as defined by 29 CFR 1904.5; and
3. The illness results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or is a significant injury or illness diagnosed by a physician or other licensed healthcare professional.

The first step simply requires that you determine whether your employee has tested positive for COVID-19. If the answer is “no,” you will not record the illness on your 300 log. An employee report of symptoms, without a confirmed positive test, is not sufficient to make an illness recordable. But now that COVID-19 tests are easier to come by in most locations, we should expect to see more employees with confirmed positive cases.

Assuming your employee has tested positive for COVID-19, you must move on to the second step and determine whether the illness is work related. This can be tricky, depending on whether there are other cases of COVID-19 in your workforce, and whether there is community spread of the virus in your area.

To comply with the recordkeeping requirements of 29 CFR 1904, employers must make a “reasonable determination” as to whether an employee’s COVID-19 case is work related. To make a “reasonable determination,” you must first ask your employee how he believes he contracted the illness. Your employee’s answer is likely to fall into 1 of 3 categories: (1) your employee believes he contracted the virus from someone outside of work; (2) your employee believes he contracted the virus at work; or (3) your employee will not know how he contracted the virus. If your employee reports that he contracted the virus outside of work (for example, he reports that he caught it from close contact with a friend or relative known to have COVID-19), your inquiry can probably stop with this information, unless you also have known COVID-19 spread within your workforce.

But, if your employee reports that he does not know where he contracted the virus, or that he believes he was exposed to the virus at work, you must proceed to ask follow-up questions about the employee’s in- and out-of-work activities. During this inquiry, you must be mindful of the employee’s privacy and avoid questions that could expose you to liability under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act, etc. For example, you could ask your employee if anyone he lives with has tested positive for COVID-19, whether he has been in close contact (within 6 feet for more than 15 minutes) of a person known to have COVID-19, whether he has recently attended any large gatherings, and similar generic questions. You may find it helpful to prepare—in advance—a list of questions you will ask employees who report COVID-19 cases. You might also wish to have your questions reviewed by your employment counsel to ensure your questions will not violate one of the many other laws that employers are required to comply with concerning employee privacy, protected status, etc.

Last, you should review the employee’s work environment for potential sources of exposure. According to OSHA, cases are “likely work related” when there is no alternative explanation other than workplace exposure, and 1 of the following conditions is true: (1) several cases develop among workers who work closely together; (2) the virus is contracted shortly after a lengthy and close exposure to a customer or coworker who has the virus; or (3) the employee’s job duties involve frequent and close exposure to the general public in a locality with ongoing community transmission. On the other hand, an employee’s COVID-19 illness is likely not work related if the employee is the only worker in his work area to contract the virus; his job duties do not include frequent contact with the general public; or if the employee, outside of work, closely associates with someone who has COVID-19.

You should be prepared to undertake this inquiry for COVID-19 cases reported by your own employees, as well as workers (not employed by you) that you supervise and/or control. For example, if you have temporary workers on your jobsite, or if you exercise control over a subcontractor’s employees, you will be required to record their
work-related COVID-19 cases on your OSHA log unless the temporary employment agency agrees to log it on their 300 log. Remember, it must be recorded on 1 log or the other, so this is something you might want to deal with in your contract with the temporary employment agency—see 29 CFR 1904.31(b)(2) and 1904.31(b)(4). You will need to make a reasonable determination as to the work-relatedness of those cases as well.

You must only record the case of COVID-19 if it is “more likely than not” work related. If you have conducted a reasonable investigation into the work-relatedness of the illness and cannot determine whether a workplace exposure played a causal role, the illness is not recordable. If it is a close call, and you decide not to record the illness, you would be well served to document the reasons you decided not to record the illness on your log.

You will have 7 days to record a case on your OSHA log. Thus, you will have about a week to investigate the source of the employee’s illness and make your “reasonable determination” as to work-relatedness. If you initially determine that a case is not work related, but later learn that it is, you must record the illness at that time. To avoid a potential OSHA citation for untimely recording, you should document the reason you initially determined the illness was not work related in addition to the date you learned information suggesting otherwise. Further, if you initially determine that the illness is work related, but later learn that it is not, you should line through the entry on your OSHA log. (Do not erase it!)

Assuming that your employee tested positive for COVID-19 and you have determined the illness is work related, you will need to determine whether the illness meets 1 of the other recording criteria (i.e., resulting in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or the illness is a significant injury or illness diagnosed by a physician or other licensed health-care professional). Cases of COVID-19 will virtually always result in days away from work; thus, there will be few, if any, situations where the third recording criterion is not met.

As always, the obligation to record work-related cases of COVID-19, along with other illnesses and injuries, only applies to employers with more than 10 employees in a calendar year.

Do I need to report a case of COVID-19 to OSHA?

This section applies to employers of any size. Only serious illnesses and injuries must be reported to OSHA—i.e., injuries and illnesses resulting in death, in-patient hospitalization, amputation, and/or loss of an eye. Although work-related COVID-19 infections may result in hospitalization or even death, they are only reportable to OSHA under certain circumstances. A hospitalization must only be reported if the employee is admitted to the in-patient unit of the hospital for treatment within 24 hours of the work-related incident (i.e., exposure). It will likely be difficult to determine when an employee’s work-related exposure occurred, and thus, difficult to determine whether the hospitalization occurred within 24 hours for purposes of reporting. If an employee dies from a work-related case of COVID-19, the death is reportable if it occurs within 30 days of the work-related exposure.

Editor’s note: For more on this topic, see “OSHA Raises the Bar for Investigating the Work-Relatedness of COVID-19 Cases” in the July 2020 issue of Insulation Outlook.

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