COVID-19 and workplace safety has been a moving target for OSHA and it has released a number of advisories, including one in March that said new cases were recordable events and then another one in mid-April saying employers are not required to report new cases among employees.

But in May OSHA issued new guidance, once again asking employers to investigate COVID-19 cases among their workers and report them to the agency for cases they deem as having been contracted in the workplace.

The guidance recommends that employers investigate the genesis of all COVID-19 cases among employees, which could be a significant burden on businesses as discerning where exactly someone contracted the coronavirus is difficult for people who are not medical professionals.

Under the revised enforcement policy, employers must “make reasonable efforts” to investigate confirmed cases of coronavirus in the workplace to determine if they were more likely than not contracted in the workplace.

OSHA said it would not expect employers, especially small employers, to undertake extensive medical inquiries of workers, given employee privacy concerns and most employers’ lack of expertise in this area.

It will be sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, to:

  • Ask the employee how they believe they contracted the COVID-19 illness;
  • While respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the illness; and
  • Review the employee’s work environment for potential COVID-19 exposure.

OSHA also recommends that the employer look for other employees who may have been exposed to the coronavirus at work, particularly if they work in close proximity to a co-worker who later tests positive.

Only COVID-19 claims that were determined to have come from the workplace and required hospitalization or days away from work need to be recorded, according to the guidance.

The guidance also states that if multiple employees in a particular business unit test positive for COVID-19, the assumption is that these coronavirus cases are work-related.

What to look for

When investigating cases, the employer should look for evidence that may more readily point to a case or cases having been contracted at work, such as:

  • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together, and there is no alternative explanation.
  • A COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or co-worker who has a confirmed case of COVID-19, and there is no alternative explanation.
  • An employee’s COVID-19 illness is likely work-related if their 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 illness is likely not work-related if the individual 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.
  • An employee’s COVID-19 illness is likely not work-related if they closely associate with someone outside the workplace and who has COVID-19.

The takeaway

The new guidance is a lot to swallow, particularly as many employers do not have the expertise to conduct illness investigations.

OSHA stresses that it doesn’t expect perfection, but that it does expect employers with more than 10 employees to conduct investigations as prescribed above, particularly interviewing the employee and investigating if others who work with them also contracted COVID-19.

Given the nature of the disease and the ubiquity of community spread, however, in many instances it will be difficult to determine whether a COVID-19 illness is work-related, especially when an employee has potentially been exposed both in and outside the workplace.

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