By Robert J. Reinertson
March 27, 2020
As the number of COVID-19 cases keeps increasing, it is time to revisit the question of whether employers are supposed to record COVID-19 cases as work-related illnesses under OSHA regulations.
OSHA requires that covered employers record COVID-19 cases on their logs if the following criteria are met:
- The illness has been confirmed by a laboratory as a COVID-19 case;
- The case results in any of the following:
- Days away from work
- Restricted work or transfer to another job
- Medical treatment beyond first aid
- Loss of consciousness
- Involves a “significant” illness diagnosed by a physician or other licensed health care professional, even it does not result in any of the above. (In its regulations, OSHA cites the following as examples of “significant illnesses”: cancer, chronic irreversible disease, or significant progressive diseases such as byssinosis, silicosis, or some types of cancer.)
- The COVID-19 case is “work-related”. Under OSHA regulations, an illness is “work-related” if an event or exposure in the work environment caused or contributed to the illness or significantly aggravated a pre-existing illness. An illness is presumed to be work-related unless an exception such as the following applies:
- The illness is the common cold or flu. However, OSHA notes that “contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work”.
- The illness involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside of work.
- The illness is solely the result of an employee eating, drinking, or preparing food or drink for personal consumption (whether bought on the employer’s premises or brought in), unless the employee is made ill by ingesting food contaminated by workplace contaminants.
- The injury or illness is solely the result of an employee doing personal tasks unrelated to their employment at the workplace outside of the employee’s assigned working hours.
An illness that occurs when an employee is working at home, including work in a home office, is work-related if it occurs while the employee is performing work for compensation in the home, and the illness is directly related to the performance of the work rather than to the “general home environment or setting”. For example, the illness would not be considered work-related if it was brought into the home by a family member or someone not related to the work for which the employee was being compensated.
The above discussion involves recording COVID-19 cases, not reporting them to OSHA. As with non-COVID-19 cases, work-related COVID-19 cases that must be reported to OSHA are those that result in death or in-patient hospitalization.
It can be very difficult to know whether a coronavirus case is work-related or not. The type of workplace will be crucial to the determination. For example, health care workers with direct contact with COVID-19 patients will be presumed to have work-related illnesses if they contract COVID-19 themselves. The same may be true for a sales clerk who assists customers throughout the work day. The determination will be more difficult for office settings and other workplaces where contact with the public is more limited or controlled.
Even if the root of the exposure seems obvious or the work-related presumption seems strong, it does not necessarily mean that it definitely is work-related. The employer should try to determine how and where exposure may have occurred so it may legitimately avoid having to record an illness that in fact is not work-related.
Contact a Ruder Ware employment law attorney for questions about this or any other COVID-19 issue.
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