On April 10, the Occupational Safety and Health Administration attempted to simplify the decision making for most employers in determining whether employees diagnosed with COVID-19 contracted the disease at work. This earlier guidance seemed to be signaling that, unless an employer was in the health care industry or certain emergency response organizations, the Agency was not expecting many COVID-19 cases to be recordable. The Agency, in essence, said that in other workplaces, it was too difficult to determine whether the cases were actually work-related. Under the April 10 guidance, there had to be “objective evidence” that an employee contracted COVID-19 in the work environment, and the “objective evidence” had to be “reasonably available.” These terms did not exist in any of the 29 C.F.R. Part 1904 recordkeeping regulations, nor were there any Interpretation Letters explaining what those terms meant under any fact scenarios. As a consequence, many employers interpreted this guidance to mean that unless there could be no other logical explanation for an employee’s contracting COVID-19 than an exposure at work, the case was not work-related or recordable.
On May 19, OSHA issued a Revised Enforcement Guidance document, rescinding the April 10 guidance effective May 26. In its place is an attempt to fine-tune the April 10 guidance by explaining, in very broad terms, circumstances under which a case will be determined to be work-related.
The new guidance first reiterates the OSHA recordkeeping criteria for recording a case of COVID-19:
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The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention;
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The case is work-related under § 1904.5, the recordkeeping regulation that deals with work-relatedness; and
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One or more of the general recording criteria in § 1904.7 are met, such as medical treatment or days away from work.
The first step of the above three-step process is met only if the diagnosis of COVID-19 is established by a positive test result for SARS-CoV-2. Thus, it does not appear that symptoms alone, or even a diagnosis alone, would be enough.
The key to COVID-19 recordkeeping determinations is the second step: whether the case is work-related. OSHA acknowledges that because of the “ubiquity of community spread,” it is difficult to determine whether a COVID-19 illness is work-related. Employers are expected to make a “reasonable” investigation as to whether the case is work-related. This means that an employer should, among other things, do the following:
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Ask the employee how he believes the illness was contracted;
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Discuss with the employee the work and outside-of-work activities that may have led to the illness; and
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Review the employee’s work environment for potential SARS-CoV-2 exposures, including whether other employees who work near the employee also contracted COVID-19.
OSHA also notes in a different section of its Guidance document that “due weight” should be given to the opinion of a medical provider or public health authority as to whether the case is work-related.
Most importantly, OSHA provides a few examples of the evidence that it believes would be instructive in making the determination of work-relatedness:
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Likely to be work-related if “several cases” develop among workers who “work closely together and there is no alternative explanation.”
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Likely to be work-related if COVID-19 is “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.”
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Likely to be work-related if 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.”
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Likely not to be work-related if the employee is “the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.”
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Likely not to be work-related if, outside of work, the employee “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.”
OSHA summarizes its examples by stating that if an employer cannot determine whether it is “more likely than not” that exposure in the work environment “played a causal role” with respect to the particular case of COVID-19, the employer does not need to record the case. The use of the “more likely than not” analysis is consistent with OSHA’s existing interpretation of § 1904.5(b)(3). Under this test if it is just as likely that an employee contracted the disease as a result of community spread, the case would not be work-related.
The reference to whether an exposure at work played a “causal role,” however, complicates the analysis. OSHA has consistently interpreted “work-related” in its Interpretation Letters to mean that the work environment need not be the sole cause or a predominant cause of a resulting injury or illness, but just a contributing factor. It is not yet clear whether this new guidance is intended to change that interpretation, temporarily, for COVID-19 cases.
Lessons learned
This new guidance is largely a return to the recordkeeping criteria that have been in place since 2002, which was relaxed by the April 10, 2020, guidance. Employers will again be expected to investigate COVID-19 cases just as they would any other illness case. The Agency recognizes that these determinations will be difficult because of the widespread existence of the coronavirus in communities. Each “work-related” example provided by OSHA includes the caveat, if “there is no alternative explanation” for the employee’s contracting COVID-19. In sum, the key in employers’ investigations will be to determine whether an employee had known exposures to COVID-19 away from work. This will not be an easy task.
The new guidance also appears to have complicated employers’ obligation to report admissions to a hospital or fatalities related to COVID-19. As noted, a COVID-19 case is not recordable according to the May 19 Enforcement Guidance document unless the employee tests positive for COVID-19. While an employer will obviously be aware of a hospital admission or a death, it is not clear that an employer would necessarily receive evidence of a positive test for COVID-19 near the time of an admission or even of an employee’s death. As of now, OSHA has not clarified whether an employer would have to know about the positive test result before its obligation to report was triggered.
