Beginning May 26, 2020, employers who are required to keep Occupational Safety and Health Act (OSHA) injury and illness logs [which according to OSHA’s website include ‘facilities support services’ and ‘services to buildings and dwellings’ with 10 or more employees ‘at all times during the previous calendar year’ - click here to see the full listing of covered and exempt businesses: https://www.osha.gov/recordkeeping2014/records.html -Ed.] must determine if an employee’s CDC-confirmed case of COVID-19 that meets recording criteria is job-related -- and therefore subject to OSHA’s recording requirements. In addition, all employers will be required to determine whether an employee’s CDC-confirmed case of COVID-19-related illness resulting in a fatality or the employee’s in-patient hospitalization, amputation, or loss of an eye is work-related, and therefore recordable. Recording a COVID-19-related illness does not, in and of itself, mean that an employer has violated OSHA. Rather, recognizing the difficulties with determining whether COVID-19 was contracted in the workplace, OSHA has set forth specific considerations it will apply in determining whether an employer complied with this obligation:
- The reasonableness of the employer’s investigation into work-relatedness
- The evidence available to the employer
- The evidence that a COVID-19 illness was contracted at work
- OSHA has provided examples of the types of evidence that may weigh in favor of or against work-relatedness:
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 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.
An employee’s COVID-19 illness is NOT likely work-related if the employee is the only worker to contract COVID-19 in the employee’s vicinity and the employee’s job duties do not include having frequent contact with the general public, regardless of the rate of community spread.