How Employers should document COVID-19 Cases at Work
As states begin the process of reopening and allowing employees to return to the workplace, employers are now required to understand and remain complaint with the continuously changing set of regulations in regards to the health and safety of their employees, customers, and partners. Employers must maintain corporate responsibility and follow industry standards in record keeping of confirmed cases of COVID-19 contracted by employees in the workplace.
Effective as of May 26, 2020, the federal Occupational Safety and Health Administration (OSHA) has published Revised Enforcement Guidance for Recording Coronavirus Cases. These new guidelines supersede OSHA’s previous guidelines on case recording.
Operating a business, maintaining the health of employees, and staying up-to-date on every workplace safety law during an on-going pandemic can be exhausting, however, with the correct tools and resources, it can be done more efficiently.
Key Components of OSHA’s Updated COVID-19 Recording Guidance
Under OSHA’s normal record-keeping requirements, COVID-19 is a recordable illness if an employer determines that it is work-related. Under current circumstances, determining whether a case of COVID-19 is work-related can be nearly impossible. However, OSHA’s new guidelines simplify the process of determining whether a case of COVID-19 is work-related into account.
How to Determine Work-relatedness and Record Confirmed COVID-19 Cases
In order to determine if an employer is doing everything they can to keep their people safe, OSHA requires they take the following factors into account:
The reasonableness of the employer’s investigation into work-relatedness
- When an employer learns of an employee’s COVID-19 illness, they should make the following inquiries to determine work-relatedness:
- Ask the employee how they believes they contracted to the COVID-19 virus;
- While respecting employee privacy, discuss with the employee his/her work and out-of-work activities that may have led to the COVID-19 illness; and review the employee’s work environment for potential COVID-19 exposure.
The evidence available to the employer
- The evidence that a COVID-19 illness was work-related should be considered based on the information currently available to the employer at the time they made their determination.
- If the employer later learns more information related to an employee’s COVID-19 illness, then that information should be considered as well in determining whether an employer made a reasonable work-relatedness determination.
The evidence that a COVID-19 illness was contracted at work
- OSHA will consider all reasonably available evidence, as mentioned above, to determine whether an employer has complied with its record-keeping obligation.This cannot be reduced to a simple formula, but certain types of evidence may weigh in favor of or against work-relatedness. For example:
An employee’s COVID-19 illness is most likely work-related:
- When multiple cases develop among workers who work in proximity and there is no alternative explanation (e.g., sick family members)
- If it is contracted shortly after lengthy, close exposure to a customer/partner/coworker who has a confirmed case of COVID-19 and there is no alternative explanation
- If job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation. (For example public health, transportation, retail and hospitality industries)
An employee’s COVID-19 illness is most likely not work-related:
- If the employee is the only worker to contract COVID-19 in their vicinity and their job duties do not include having frequent contact with the general public, regardless of the rate of community spread
- If the employee, outside the workplace, participates in activities in which large groups of people are present, or 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.
- The opinions of medical providers, public health authorities, or the employee as to how the illness was contracted will be given considerable weight by OSHA.
What Employers Should Know
Information regarding the COVID-19 virus and how it spreads is continuously developing and laws and/or guidelines are being created or updated on a daily basis. These new standards help employers to further evaluate an infection as mitigate risk. Be sure to keep open communication with employees and customers so that they can know that work is being done to limit their exposure.
As workplaces open for employees and the general public please consider with the following:
1. Recording a COVID-19 case does not mean the employer violated OSHA standard
It is important for employers to remember that recording a work-related case of COVID-19 does not, in and of itself, mean that the employer violated OSHA standards. However, employers must follow guidelines from OSHA, the CDC, and state and local authorities to prevent the spread of COVID-19 in the workplace. The duty to provide a safe workplace and the duty to report work-related illnesses are related but independent obligations.
2.Develop a policy for investigating and recording consistent with OSHA guidance
Employers should draft or update their policies for investigating and recording confirmed cases of COVID-19 in the workplace. Such policies should conform to the OSHA guidance described above and cover three main topics: (1) Investigation of Confirmed Cases; (2) Review of Evidence to Determine Work-Relatedness; and (3) Recording of Work-Related cases.
3.Keep up with changes to federal, state, and local workplace safety requirements
As the public health situation changes, and as more is learned about how the virus spreads, workplace safety requirements are likely to change.
Here is a list of resources to keep up with the changes to the workplace health and safety laws
If you’d like to get additional support on how you can remain compliant, properly store records, and keep track of potential infections within your workplace to give your employees peace of mind and build a culture of well-being, click here to speak to us.