On May 19, 2020, OSHA again revised its guidance to employers concerning enforcement of the record-keeping requirements found in 29 CFR 1904 as they pertain to the recording of COVID-19 cases.

From the start of the COVID-19 outbreak in the United States, 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 Disease 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, or loss of consciousness, or is a significant injury or illness diagnosed by a physician or other licensed healthcare professional.

While the first and third criteria are relatively easy to verify, determining the work-relatedness of COVID-19 is particularly difficult for employers when there is known community spread of the virus. In previous guidance, OSHA recognized this difficulty and stated that it would not require employers to determine the work-relatedness of a COVID-19 case (and would not enforce 29 CFR 1904) unless1:

1. There was objective evidence that a case of COVID-19 may be work related (for example, a number of cases developed among workers who work closely together without an alternative explanation); and
2. This objective evidence was reasonably available to the employer (including information given to the employer by employees, as well as information an employer learned regarding its employees’ health and safety in the ordinary course of managing its business and employees).

In practice, this meant that an employer was not required to undertake an extensive inquiry into the potential work-relatedness of an employee’s COVID-19 and could rely upon objective information that was reasonably available to it. Unless the causal link between COVID-19 and the workplace became known to the employer through the normal course of operating the business, the employer was not expected to record the case.

However, OSHA has announced that it will now enforce 29 CFR 904 with respect to employers across all industries2 and has issued new guidance that raises the bar for employers investigating the work-relatedness of COVID-19 cases.

Effective May 26, 2020, employers must make a “reasonable determination” as to the work-relatedness of employee COVID-19 cases. Now, employers must take affirmative steps to question employees with confirmed cases of COVID-19, rather than simply relying upon information that the employer could learn through the regular course of managing the business. To make a “reasonable determination,” employers should “(1) [A]sk the employee how he believes he contracted the COVID-19 illness; (2) while respecting the employee’s privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee’s work environment for potential SARS-CoV-2 exposure,” keeping in mind any other workers in the same environment who have contracted COVID-19. OSHA cautions that employers, and particularly smaller employers, “should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area.” So the “reasonable determination” is modified by the ability of the employer to obtain information while pursuing the steps enumerated in this paragraph, in light of the caution regarding employee privacy concerns and the recognition that most employers do not have expertise in these areas.

In addition to questioning employees, OSHA will continue to look at information that was reasonably available to the employer at the time the work-relatedness determination was made, but OSHA announced that it will also look at information that the employer learned later (after the work-relatedness determination was made) to assess whether the employer’s determination was reasonable. Such Monday-morning quarterbacking by OSHA places a burden on employers to revisit the “work-relatedness” determination of COVID-19 cases that were not recorded if subsequent information suggests that the case should have been recorded.

OSHA outlined the types of evidence that would weigh in favor of a COVID-19 case being work related, stating that cases are “likely work related” when several cases develop among workers who work closely together; if contracted shortly after a lengthy and close exposure to a customer or coworker who has the virus; or if the employee’s job duties involve frequent and close exposure to the general public in a locality with ongoing community transmission, and there is no alternative explanation other than workplace exposure. OSHA stated that it would also “[G]ive due weight to any evidence of causation,
pertaining to the employee illness, (sic) at issue provided by medical providers, public health authorities, or the employee herself.”
On the other hand, OSHA acknowledges that 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.
Last, OSHA clarified that employers must evaluate the work-relatedness of each case using a “more likely than not” standard. OSHA stated, “If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to the particular case of COVID-19, the illness is not recordable.” In other words, a mere possibility that the exposure occurred in the workplace does not make a case recordable.
It remains to be seen whether this new guidance ends up being a distinction without a difference, as many employers are already investigating employee COVID-19 cases to protect their other employees and comply with various state government directives. But, in the event OSHA pays a visit, employers should be prepared to prove they have made a “reasonable determination” as to the work-relatedness of employee COVID-19 cases. When an employer questions an employee with a known case of COVID-19, the questions and responses should be documented by the employer, dated, and stored in a location where the employee’s health information will be protected. If an employer decides that a particular case is not work related, it should document any and all reasons supporting that determination. In addition, employers who typically rely upon their workers’ compensation insurance carriers to investigate worker claims should not strictly rely on the insurance company’s investigation to determine the work-relatedness of the virus. To comply with OSHA’s directive, employers should undertake an independent investigation (which may have to be more extensive than their workers’ compensation insurance carrier’s investigation) of each claim and arrive at their own conclusions about the work-relatedness of COVID-19 cases. If the employer is in 1 of the few states that prohibit private workers’ compensation insurance, the bulk of the investigation on work relatedness will fall on the employer’s shoulders. OSHA has made it clear that it is the responsibility
of the employer to make the reasonable determination; and,
therefore, the employer will have to defend itself in the case of recordability by demonstrating that it did act reasonably in making its determination.

Citations:
1. This “hands off” policy did not apply to employers of workers in the healthcare industry, emergency response, or correctional institutions. Employers in those industries were required to continue making work-relatedness determinations on a case-by-case basis.
2. As always, employers with 10 or fewer employees are not subject to the injury/illness recording requirements in 29 CFR 1904 and need only report cases of COVID-19 that result in death, hospitalization, amputation, or loss of an eye.

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