All Employers Must Monitor Employee COVID-19 Cases Under Updates to OSHA’s Interim Enforcement Plan and Guidance for Recording Cases

Revised Guidance on Recording and Reporting COVID-19 Cases Applies to All Employers
Prior to the COVID-19 pandemic, many employers in ordinarily low-risk industries had little experience with regulations under the Occupational Safety and Health Act. As explained in our March 16, 2020 alert, “Workplace Safety in the Midst of a Pandemic,” the Act imposes a general duty on all employers to provide employees with a “place of employment … free from recognized hazards that are causing or are likely to cause death or serious physical harm”—including the “recognized hazard” of infection with the SARS-CoV‑2 coronavirus, which causes the disease now called COVID-19.

The Act also sets forth recording and reporting requirements for work-related illnesses or injuries. The recording requirements apply only to employers in covered higher-risk industry classifications, such as many manufacturing and farming sector businesses. Those employers, if they have more than 10 employees, are required to record occupational illnesses or injuries—a category that may now include worker COVID-19 infections. Employers in certain lower-risk industry classifications are deemed “partially exempt” from recording requirements, as they are not required to keep OSHA injury and illness records unless asked in writing to do so by OSHA, the Bureau of Labor Statistics (BLS), or a state agency operating under the authority of OSHA or the BLS. Under OSHA regulations, all employers, including those partially exempted from recording requirements by reason of company size or industry classification, must promptly report to OSHA any workplace injury or illness that results in a fatality, in-patient hospitalization, amputation, or loss of an eye.

As COVID-19 can result in severe complications that require hospitalization, many partially exempt employers may, for the first time, find themselves needing to make reports to OSHA if an employee contracted COVID-19 in the workplace. The new Guidance clarifies “employers should be taking action to determine whether employee COVID-19 illnesses are work-related” and thus recordable (if the employer is subject to recording requirements) or, if severe enough, reportable to OSHA. Under OSHA regulations, an employer must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless a regulatory exception specifically applies.

Because COVID-19 can be spread through community transmission and from individuals who are asymptomatic or pre-symptomatic, determining how or where an individual contracted COVID-19 can be challenging. The Guidance mandates, however, employers make a “reasonable and good faith inquiry” and record or report the COVID-19 illness if they determine “it is more likely than not that exposure in the workplace played a causal role” in an employee’s confirmed case of COVID-19. The Guidance defines a “confirmed case of COVID-19” as “an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19.” The following factors will bear on whether an employer “made a reasonable determination of work-relatedness”:

• Reasonableness of investigation. Employers “should not be expected to undertake extensive medical inquiries.” The Guidance instructs employers (1) to ask the employee how the employee believes the employee contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee 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.
• Evidence reasonably available to the employer at the time of the employer’s work-relatedness determination.
• Evidence that the illness was contracted at work. While the Guidance acknowledges there is not “a ready formula,” the evidence below may weigh in favor of or against work-relatedness. Due weight should be given to any evidence of causation provided by medical providers, public health authorities, or the employee.

A COVID-19 case is likely work-related if:

-  Several cases develop among workers who work closely together and there is no alternative explanation.

-  It was contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.

-  The employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

A COVID-19 case is likely not work-related if:

-  The employee is the only worker to contract COVID-19 in the employee’s vicinity, and the employee’s job duties do not include having frequent contact with the general public, regardless of the rate of community spread.

-  The employee, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

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 or report that COVID‑19 illness. Employers who fail to promptly report such work-related hospitalizations or deaths may be subject to civil penalties.

As a practical matter, these requirements mean all employers must monitor employee illness-related absences and follow up with employees who have reported COVID-19 symptoms to determine whether the employee has tested positive for COVID-19. For employers subject to recording requirements, an employee’s positive COVID-19 test result will trigger the requirement to investigate whether the infection was work-related, regardless of whether the employee is able to recover at home or is admitted to the hospital. For partially exempt employers, the investigation requirement will be triggered only if the employee is hospitalized or dies. (The other regulatory triggers of amputation or loss of an eye presumably would also involve hospitalization.)

For employers that have been able to continue to operate through telework during the shutdown orders, the additional compliance burden of these contact-tracing and reporting requirements may be a reason to defer return to onsite work. If no employees have ventured into the workplace or had in-person work-related interactions, a teleworking employee’s diagnosis will not trigger an employer’s obligation to monitor and record or report work-related COVID-19 cases. For employers planning to return to onsite work, compliance with these requirements is an essential part both of monitoring the safety of the workplace and avoiding legal violations.

Updates to Interim Enforcement Plan
OSHA has announced that, as of May 26, 2020, its inspection strategy will depend on the “geographic area.” Previously, inspections prioritized very high and high exposure risk environments in the healthcare and emergency response industries. Under the updated plan, “where community spread of COVID-19 has significantly decreased,” OSHA will return to the status quo and prioritize inspections per its pre-COVID-19 policy. In geographic areas where community spread has elevated or resurged, OSHA will “continue prioritizing COVID-19 fatalities and imminent danger exposures for inspection.” High-risk workplaces such as hospitals and workplaces with numerous complaints or known cases will be given particular attention for onsite inspections.

Other than the new “geographic area” framework, the nuts and bolts of the enforcement plan set forth in the April 10 guidance largely remains intact. (See “OSHA’s Interim Enforcement Plan for COVID-19” alert issued on April 17, 2020.)

For more information, or to discuss regulatory agency guidance during the COVID-19 pandemic, please contact us.

Pillsbury’s experienced multidisciplinary COVID-19 Task Force is closely monitoring the global threat of COVID-19 and providing real-time advice across industry sectors, drawing on the firm’s capabilities in crisis management, employment law, insurance recovery, real estate, supply chain management, cybersecurity, corporate and contracts law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 (Coronavirus) Resource Center.