As pandemic restrictions are beginning to ease, employers are increasingly challenged with knowing and meeting their obligations concerning COVID-19 prevention in the workplace. The confusion and shifting nature of these goal posts is best exemplified by the Department of Labor’s recent revised memorandum advising that employers are responsible for recording cases of COVID-19 occurring in the workplace. On first read, the new requirements can seem overwhelming, and the memorandum itself highlights how difficult it is to fit OSHA reporting requirements into a COVID-19 world.
First, “low-risk” industries or employers with 10 or fewer employees are exempt from the reporting unless the illness results in a fatality or in-patient hospitalization. The OSHA list of low-risk industries is not adjusted for the unique nature of the pandemic. Retail, childcare services, restaurants, and even some outpatient care centers are considered “low risk,” even though these areas clearly will expose workers to the public.
For employers not in these industries, a great deal of detective work will be needed to determine if the illness was truly “work-related.” The new guidance doesn’t change the definition of work related injury or illness. The DOL acknowledges that, under the standing definition, “it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.” Indeed, requiring employers to essentially conduct their own form of contact tracing is a tough feat given experts warn COVID-19 poses new tracking challenges.
But none of those challenges will excuse non-compliance. Employers are advised to perform a reasonable investigation when evaluating if they should report an employee’s COVID-19 illness to OSHA. Extensive medical inquiries are not advised. That opens an entirely new set of problems under the Americans with Disabilities Act. DOL advises employers meet their duty by asking the employee how they believe they contracted the COVID-19 illness; discussing work and out-of-work activities that may have led to the COVID-19 illness; and reviewing the employee’s work environment for potential SARS-CoV-2 exposure.
Lastly, common sense is allowed. If multiple workers develop the illness after working closely together, this could require reporting. In the alternative, an illness is likely not work-related if the employee is the only one to contract COVID-19 and their job duties do not put them in contact with large numbers of the public.
As businesses reopen, turn to your local and state health guidance. While the goals of OSHA are admirable, the protections and obligations it issues are not a good fit for the modern pandemic.
About the Author:
Tyler Freiberger is an associate attorney at Centre Law & Consulting primarily focusing on employment law and litigation. He has successfully litigated employment issues before the EEOC, MSPB, local counties’ human rights commissions, the United States D.C. District Court, Maryland District Court, and the Eastern District of Virginia.