United States of America

22 May 2020

OSHA has included new guidance for employers to determine whether employees have hired COVID-19 on the work

The Occupational Safety and Health Administration (OSHA) has issued new guidance that requires employers covered by OSHA's recordkeeping standards to determine whether employees have hired COVID-19 while on the job.

To "provide certainty to employers and workers," beginning May 26, 2020, the agency is requiring all employers to record all cases of COVID-19 that be confirmed with at least one positive test (as defined by the CDC as a respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19); Are work-related; and Cause employees to seek medical treatment beyond first aid, result in loss of work days or work restriction, or cause unconsciousness or death.

In earlier guidance, issued on April the U.S. agency recognized the difficulty of determining whether a case of COVID-19 was "work-related" because of possible employee infections at home or elsewhere. In deciding that employers should focus on protective measures, OSHA limited the requirement to make work-related determinations to employers in health care industries, emergency response organizations, and correctional facilities. Under that guidance, most employers were exempt from making work-related determinations unless objective evidence of a work-related case was reasonably available to the employer. The April 10 guidance will be rescinded on May 26, 2020 and the May 19, 2020 guidance will take effect.

Therefore, most employers must determine whether employees contracted COVID-19 on the job by completing OSHA 300 records that list injuries and illnesses. These records have become increasingly relevant in recent years because OSHA uses the self-reported data from employers in the records to publish the injury and illness rates for each workplace on the agency's Web site. 

The only employers that are exempt from maintaining such injury and illness records are those with 10 or fewer employees or certain employers in low-hazard industries. OSHA has directed enforcement officials to consider a variety of factors in determining compliance, such as:

  • The employer's investigation of the employment relationship;

OSHA has indicated that the employee should be asked how the employee believes he contracted COVID-19; Determining the employee's activities outside of work.

  • The evidence available to the employer;

The determination of whether a case is work-related must be based on the evidence reasonably available to the employer at the time the determination is made, but may be changed later when the employer learns more information that may affect the determination of the employment relationship.

  • Evidence that the COVID-19 virus was contracted at work.

OSHA guidance outlines some evidence that may weigh for or against the employment relationship, including

(a) If there are multiple cases among workers who work closely together and there is no alternative explanation (probably work-related);

(b) If an employee contracted COVID-19 shortly after close and prolonged exposure to a customer or co-worker that has been confirmed positive and there is no alternative explanation;

(c) If the employee's work duties have him/her infrequent and close exposure to the general public in an area with continuous transmission to the community and there is no alternative explanation;

(d) If the employee is the only worker who contracted the COVID-19 and the employee's work duties do not include frequent contact with the public; and if the employee, outside of work, has close and frequent contact with family, partners, friends, (who are not co-workers) who have COVID-19. 

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