Gus Lazares & Dan Burke
Last month we told you that that OSHA had relaxed the COVID-19 recording requirements for employers. OSHA recently rescinded that guidance and will now require all employers to record a COVID-19 illness if it is work-related. To aid employers in these determinations, OSHA has provided additional clarification as to how to determine if a COVID-19 illness is “work-related.”
By way of background, employers with more than ten employees are required to record cases of COVID-19 with OSHA that are:
(1) Confirmed as COVID-19 (as defined by the CDC);
(2) Work-related; and
(3) Involve one or more of the recording criteria laid out in 29 CFR § 1904.7 (generally death, serious injury, or missed work).
As employers know, the trickiest part of this rule is figuring out if a case of COVID-19 is “work-related.” The government does not want employers to pry extensively into their employees’ personal lives in order to determine if a given COVID-19 case is work-related; thus OSHA advises that it is sufficient to do the following upon learning of an employee’s infection:
(1) Ask the employee how they believe they contracted COVID-19;
(2) Discuss with the employee which of their in-work and out-of-work activities may have led to the COVID-19 illness (this discussion should be general enough to respect the employee’s privacy); and
(3) Review the employee's work environment for potential COVID-19 exposure, taking into account any other workers in that environment that contracted COVID-19.
Ultimately the employer has to determine whether it is more likely than not (i.e. >50%) that COVID-19 exposure in the workplace played a causal role in the illness. The OSHA guidance indicates that the key is to be “reasonable” (a term we know always sounds more helpful than it actually is). 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 a particular case of COVID-19, the employer does not need to record that COVID-19 illness.
It is important to note that simply recording a case of COVID-19 in compliance with OSHA’s recording rules does not, of itself, mean that the employer has violated any OSHA standards.
Are you encountering one or more cases of COVID-19 among your employees, and wondering how to proceed? Contact an experienced employment attorney at Graydon for detailed insight on how to manage regulatory hurdles. Also, be sure to regularly check in with the Graydon COVID-19 Task Force for updates.
