Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)

As employers take measures to prevent the spread of COVID-19 in the workplace, a new rule may change how you report employees who test positive for COVID-19. The Occupational Safety and Health Administration (OSHA) recently announced new guidance for employers to investigate and report cases of COVID-19 in the workplace.

In guidance issued in April, OSHA only required investigation and reporting for employers with high levels of workplace interaction, such as health care, emergency response and correctional facilities. This new guidance issued at the end of May reverses this requirement, applying it to most employers. Employers must report a case via the OSHA 300 log for positive COVID-19 cases that meet the following criteria:

  1. COVID-19 infection is confirmed.
  2. The case is work-related.
  3. The illness resulted in death, days away from work, in-patient hospitalization or medical treatment beyond first aid.

Most positive COVID-19 cases will meet the third criterion, but the focus for employers is on what constitutes “work-related.” Employers must determine whether the illness is work-related while still maintaining the employee’s privacy. To determine if the illness is work-related, employers can ask questions to make the determination but do not need to undertake extensive medical inquiries. Employers are also cautioned not to ask things that may violate the employee’s right to privacy or may violate the Americans with Disabilities Act (ADA). Employers should also avoid asking whether the employee has a family member with a positive COVID-19 case.

Some suggested questions and actions include:

  • Review the employee’s work environment for any potential exposure. This may include situations where the employee interacts with the public or otherwise has a higher risk of exposure.
  • Ask the employee how (s)he believes (s)he contracted the illness.
  • Discuss any in- or out-of-work activities that may have led to exposure (be respectful and maintain privacy in asking about out-of-work activities).

If the employee volunteers that a family member tested positive or if the employee is the only one in the workplace to test positive, the employer may determine that the illness is not considered work-related. Based on the answers and investigation above, an employer can determine if the illness is considered work-related. If considered work-related, and other criteria identified above is met, the employer should file the case with OSHA via the OSHA 300 log.

First Person will continue to monitor these reporting requirements and will update our Resource Hub with additional info from OSHA as needed.

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