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.”