OSHA Reverses Course, Now Requires All Employers to Determine Work-Relatedness of COVID-19 Illness

On May 19, 2020, the Occupational Safety and Health Administration issued revised guidance for when employers are required to record cases of COVID-19.  As before, COVID-19 is a recordable illness if:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention;
  2. The case is work-related; and
  3. The case involves one or more of the general recording criteria set forth in OSHA regulations.

Until now, however, most employers have not been required to expend significant efforts to determine whether a COVID-19 illness was work-related and, therefore, recordable; only employers of workers in the health care industry, correctional facilities, and emergency-response providers were obligated to make work-related determinations.  For more information about prior OSHA guidance, see our prior Alert.

This will change on May 26, 2020, after which all employers who are required to keep OSHA injury and illness logs must determine if a worker’s confirmed COVID-19 case is job-related.  OSHA recognizes that these determinations may be inherently difficult, stating “Given the nature of the disease and community spread… in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.”  In light of this, OSHA will assess employers’ efforts in making these determinations based on the following criteria:

  • The reasonableness of the employer’s investigation into work-relatedness. Employers will not be expected to undertake extensive medical inquiries.  Rather, it will be sufficient in most circumstances for an employer, when it learns of an employee’s COVID-19 illness, (1) to ask the employee how he or she believes the virus was contracted; (2) while respecting employee privacy, to discuss work and out-of-work activities that may have led to the COVID-19 illness; and (3) to review the employee’s work environment for potential exposure, which should be informed by any other instances of workers in that environment contracting COVID-19 illness;
  • The evidence reasonably available to the employer at the time it made its work- relatedness determination; and
  • The evidence that a COVID-19 illness was contracted at work. Evidence that may weigh in favor of or against a determination that a COVID-19 illness was contracted at work includes:
    • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
    • An employee’s COVID-19 illness is likely work-related if it 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.
    • An employee’s COVID-19 illness is likely work-related if his or her job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
    • An employee’s COVID-19 illness is likely not work-related if he or she is the only worker to contract COVID-19 in the employee’s vicinity and job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
    • An employee’s COVID-19 illness is likely not work-related if the employee, outside the workplace, closely and frequently associates with someone (g., a family member, significant other, or close friend) who: has COVID-19; is not a coworker; and exposes the employee during the period in which the individual is likely infectious.

An employer who cannot determine whether it is more likely or not that workplace exposure played a causal role with respect to a COVID-19 illness is not required to record that COVID-19 illness.  Of course, the employer must continue to respond appropriately to protect workers, regardless of whether a case is determined to be work-related.

The revised guidance followed weeks of uncertainty about whether and how employers are required to determine work-relatedness, during which period both employers and workers’ rights organizations have pushed for clarity.


OSHA Publishes New Guidance on COVID-19-Related Reporting Requirements

By Bello Welsh LLP

On April 10, 2020, the Occupational Safety and Health Administration (“OSHA”) issued enforcement guidance, limiting employers’ obligation to report employees’ COVID-19 illness.  As we noted in our prior Employer Q&A (#17), ordinarily an illness is recordable if the illness is contracted as a result of the employee performing their work-related duties, and if it requires medical treatment beyond first aid or days away from work.  Moreover, under earlier OSHA guidance, it was explicit that COVID-19 should not be treated like the seasonal flu, which is not subject to reporting obligations.  Since COVID-19 was not otherwise excluded, employers were obligated to determine whether any employee who ended up testing positive for COVID-19 had contracted it as a result of their work-related duties.  Under this newly-issued guidance, OSHA will not require employers (other than employers of workers in the healthcare industry, emergency response organizations of healthcare providers and first responders), to make work-relatedness determinations of COVID-19 exposure, except where:

  • There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
  • The evidence was reasonably available to the employer. For purposes of [the enforcement] memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.

Prior guidance made no such limitation or presumption, but instead referred employers back to regulations directing that “work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment.”

Workplace Violence: Can the Risk be Mitigated?

By Martha J. Zackin

Workplace violence is once again in the headlines, due to the horrific, on-air murders of a journalist and cameraman allegedly by a disgruntled former employee of the television station that employed the two victims.

But what exactly is workplace violence?  Workplace violence, according to the National Institute for Occupational Safety and Health (NIOSH), may be defined as violent acts, including physical assaults and threats of assault, directed toward persons at work or on duty.  The results of workplace violence may range from offensive language to homicide; the circumstances may include robbery-associated violence; violence by disgruntled clients, customers, patients, inmates, residents, and the like; violence by coworkers, employees, or employers; and domestic violence that finds its way into the workplace.

Read more

OSHA announces new requirements for reporting severe injuries

By Steven D. Weatherhead

Commencing on January 1, 2015, employers must report the following to the nearest OSHA-area office:

  •  Within 8 hours, a death in the workplace (regardless of reason or cause)
  •  Within 24 hours, and as a result of a workplace incident, the (1) hospital admission of one or more workers; (2) an amputation; and/or (3) loss of an eye.

Under the current rule, which stays into effect until December 31, 2014, employers must report a death or hospital admission of 3 or more employees, all within 8 hours.

Failure to follow these requirements can result in a $7,000 civil penalty (up to $70,000 for repeat violations) and hinder an employer’s ability to argue “good faith” in defending any resulting citations.

For more information, as well as a list of industries that, due to relatively low injury and illness rates, are exempt from the requirement to routinely keep illness and injury records, click here.



New Beginning

I discovered the joys of blogging in 2009, when I helped launch an employment law-related blog at another firm.  I recently joined Bello/Welsh, LLP, a boutique labor and employment law firm, where I am excited to be launching our new blog.

Our primary goal here at WorkLawBlog (worklawblog.net) is to educate you about interesting developments in labor and employment law (and our firm).  If we can entertain you along the way, all the better.

On to business… much has happened recently.

  • The Department of Labor issued a final rule extending the Fair Labor Standard Act’s minimum wage and overtime protections to direct care workers who provide home care assistance to elderly people and people with illnesses, injuries or disabilities.   Companionship workers, or individual workers who are employed only by the person receiving services or that person’s family or household and engaged primarily in fellowship and protection and care incidental to such activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.  You can access the DOL’s press release here.
  • The National Labor Relations Board launched its first mobile app, available free to iPhone and Android users.  According to the NLRB’s press release, the app provides information for employees, unions and employers- whether unionized or not- with information about their rights and obligations under the National Labor Relations Act.  The NLRB joins the DOL’s Wage and Hour Division and the Occupational Safety & Health Administration, both of which have already launched apps.  Click here for the WHD timesheet app and here for OSHA’s heat index for outdoor workers safety app.

And last (for now), but certainly not least…

  •  A NY federal court judge has ruled that Lady Gaga’s former personal assistant is entitled to have a jury decide her claim for unpaid overtime.  According to the former assistant, she was required to be on-call 24/7 and should be paid nearly $400,000 for 7,000 of overtime hours, worked over the course of 13 months.