Update: COVID-19 Workplace Reporting & New OSHA Guidance

The Occupational Safety and Health Administration (OSHA) recently issued new guidance changing its earlier position from April 10, 2020. Now, all employers (not just employers in the health care industry, emergency-response organizations and correctional institutions) must make a report to OSHA if an employee contracts COVID-19 at work.   According to the new guidance, you must report a COVID-19 case on the OSHA 300 log in the following circumstances:

  • A confirmed case of COVID-19; and
  • The illness results in death, days away from work, restricted work or the transfer to another job, medical treatment beyond first aid, or the loss of consciousness; and
  • The illness is work-related.

Due to the difficulty of determining “work-relatedness,” OSHA’s guidance outlines how the agency will be looking at an employer’s response if their employee contracts COVID-19.  Generally, OSHA will look at the employer’s reasonable efforts to investigate whether the employee got sick at (or because of) work:

  • The reasonableness of the employer’s investigation into work-relatedness. For example, did the employer ask the employee how he believes he contracted the COVID-19 illness? Was the employee talked to about his in-work and out-of-work activities that may have led to the COVID-19 illness?  Has the employer reviewed the work environment for potential COVID-19 exposure?
  • The evidence available to the employer. The includes information presently known to the employer and any evidence that the employer later becomes aware of. Document! Document! Document!
  • The evidence that a COVID-19 illness was contracted at work. For example, did several cases develop among workers who work closely together? Was the illness contracted shortly after a lengthy and close exposure to a particular client or customer who has tested positive? Do the employee’s job duties include having frequent, close exposure to the general public? Etc.

Keep in mind that the Occupational Safety and Health Act covers most employers.  Employers with 10 or fewer employees and certain employers in “low hazard industries,” as defined by OSHA, generally have no recording obligations, and they must report only work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization.

If you find yourself in a situation where one of your employees has tested positive for COVID-19, don’t assume that the employee likely caught it from outside of work of that you fall under an exception to the reporting requirements.  You should contact legal counsel, discuss the options and undertake an investigation immediately.

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Amy Dieterich, Jordan Payne Hay, and James  F. Pross are employment and labor law attorneys; others at the firm handle business and other matters. Since 1853, Skelton Taintor & Abbott has provided a full range of high-quality legal services to the individuals, companies, and municipalities of Maine. The firm’s main office is located in Auburn and in January 2019, a mid-coast office was opened in Waldoboro.