United States: Employers Required To Investigate Covid-19 Illnesses

Employers are now required to investigate whether an employee COVID-19 illness is work related under new Occupational Safety and Health Administration (OSHA) requirements.

Under OSHA's recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if: (1) the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC); (2) the case is work-related as defined by 29 CFR § 1904.5; and (3) the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

In guidance issued on April 10, 2020, OSHA acknowledged the difficulties employers would face trying to determine if any employee contracted COVID-19 due to exposures at work. OSHA suspended recording requirements for COVID-19 illnesses for all employers other than those in the healthcare industry, emergency response organizations, and correctional institutions.

As of May 26, 2020, all employers will need to investigate whether an employee who has COVID-19 contracted the disease due to exposure at work. With states re-opening and workers returning to work, employers in all industries must now investigate and to make a reasonable determination if the case is work related. If work related, employers enter the illness on its OSHA 300 log as a respiratory illness.

OSHA compliance officers will look at (i) the reasonableness of the employer's investigation into work-relatedness, (ii) evidence available to the employer that the illness was work-related, and (iii) other evidence that the COVID-19 illness was contracted at work.

Employers should use caution to ensure that they are complying with OSHA requirements and guidance, while at the same time complying with HIPAA and privacy laws safeguarding employee health information.

Smaller employers, exempt from OSHA's recordkeeping requirements, may find themselves with new reporting obligations. Smaller employers that are partially exempt from recording requirements by reason of company size or industry classification, are nonetheless required to report to OSHA any workplace injury or illness that results in a fatality, in-patient hospitalization, amputation, or loss of an eye. These employers now have a new obligation to report to OSHA if an employee contracts COVID-19 in the workplace and requires in-patient hospitalization.