What is the Employer’s Obligation to Record and Report COVID-19?

OSHA has recently cited an employer in Georgia for failing to record and report a COVID-19 illness that resulted in a hospitalization.  According to the current law, OSHA will need to prove the employee’s contraction of the virus was recordable because it is more likely than not that the employee contracted the virus due to a work-related condition and, further, that the illness was reportable because the employee was hospitalized within 24 hours of the employee contracting the virus.  This might seem like a high evidentiary hurdle for OSHA to clear but, according to a recent report, OSHA has initiated over 400 virus-related investigations into whether employers have complied with their recordkeeping and reporting obligations. 

The key issue in determining whether an employer might have an obligation to record or report a COVID-19 illness is whether the contraction of the virus by the employee is “work-related.”  OSHA requires a COVID-19 illness to be recorded when the following conditions are met:

• The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);
• The case is work-related, as defined by 29 CFR § 1904.5; and
• The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

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 that COVID-19 illness.

In determining whether it is more likely than not the employee contracted the virus due to an exposure at work, OSHA requires the employer to conduct a reasonable investigation into whether the employee contracted the virus due to a work-related condition.   According to OSHA’s guidance, there is no obligation for the employer to “conduct extensive medical inquires” but rather the employer’s investigation need only be based on evidence that is “readily available” and whether there is an “alternative explanation.”  According to OSHA guidance, where there is an alternative explanation to the work condition for the employee contracting the virus then the illness is not recordable or reportable. Finally, if information indicating the employee contracting the virus was work-related is not learned by the employer until a later date then the employer’s obligation to record or report the illness is not triggered until that information was learned by the employer. 

For example, where a cluster of employees have tested positive for COVID-19, the employer is not automatically obligated to record any of these confirmed cases where the employees have verified they have been diligent in wearing their masks, face shields and gloves and an alternative explanation has been identified through a series of questions such as the ones below.  Where the employer has a cluster of cases, the employer should inquire into whether the employees carpool together, or congregate together during lunch and/or breaks, or socialize together while not at work.  Where an alternative explanation is identified, the employer does not need to record the illness.  In such cases, the employer should document the evidence supporting the alternative explanation in order to defend its decision if challenged at a later date by OSHA.

In this example, the employer would be strictly following OSHA’s guidance where OSHA only requires the recording of positive cases when “several cases develop among workers who work closely together and there is no alternative explanation.” If the employees have been wearing the necessary equipment to prevent (or dramatically reduce) the spread of the virus while at work and an alternative explanation has been identified for each case, then the employer could reasonably conclude it is “more likely than not” that the employees each contracted the virus while they were engaged in non-work-related activities together where they did not take the same precautions as they do while at work. 

Finally, protecting an employee’s privacy concerns must be balanced with the requirement to conduct a reasonable investigation into whether the employee contracted the virus due to a work condition.  The employer can justify asking more detailed and probing questions about the employee’s personal activities that might provide an alternative explanation on the grounds that the employer is investigating whether the measures the employer currently has in place are being followed, whether modifications are required, and whether additional measures need to be taken.  

The suggested questions below are based on OSHA guidance and are intended to assist in step 2 of OSHA’s recordkeeping analysis regarding “work-relatedness.” These questions, along with any follow-up questions, are intended to be asked of all employees with confirmed cases of COVID-19 to determine whether it is more likely than not that they contracted the virus at work.  In addition, these questions, along with any follow up questions, might also be asked of employees who are potentially a “close contact” with another employee who has been confirmed as positive for the virus. 

The purpose of the questions is to not only identify potential close contacts with other employees who are confirmed positive but to also identify if there is an “alternative explanation” for the employee contracting the virus that is not work-related.

• How do you believe you contracted the COVID-19 virus?
• Have you been in contact with any persons who has been confirmed positive for COVID-19? If so, who, when and where?
• Have you been in contact with any persons who are currently experiencing, or recently experienced, any acute respiratory illness symptoms such as fever, cough, or shortness of breath? If so, who, when and where?
• Have you engaged in any activities with others outside of work where you or others near you did not wear a mask or gloves? If so, who, when and where?
• Have you gone to a public place, such as a store or a restaurant, where you or others near you did not wear a mask or gloves? If so, when and where?
• Have you or anyone in your immediate family, including children, socially engaged with others while you or the others near you were not wearing masks or gloves?  If so, who, when and where?
• Have you travelled in a car to work or somewhere else with others while you or the others were not wearing a mask and gloves? If so, who, when and where?
• Have you sat within 6 feet of others during lunch while you or the others were not wearing a mask or gloves?  If so, who, when and where?

Obviously, these suggested questions may require follow up where there are affirmative answers.  These questions should primarily focus on the prior 14 days but longer periods may need to be considered in some cases.