How Can Employers Tell If COVID-19 Is Work-Related?

Employers must investigate whether workers with COVID-19 contracted it at work, but determining that is difficult because the virus is so widespread. One option employers have is to document alternative explanations for the cause of the illness, if there are any, to prevent Occupational Safety and Health Administration (OSHA) penalties.

Employers should expect a "tidal wave" of OSHA citations for record-keeping violations, said Eric Conn, an attorney with Conn Maciel Carey in Washington, D.C. But he said that employers usually will prevail if they conduct case-by-case workplace analyses for employees who have contracted COVID-19 and either conclude an illness is not work-related or record it in the OSHA 300 log if it is.

Why the New Guidance?

OSHA's guidance, which took effect May 26, replaced April 10 guidance that had exempted all but the most high-risk industries—such as health care and emergency response—from recording COVID-19 on the OSHA 300 log.

OSHA was going to focus on technical assistance rather than enforcement, Conn said. Then union workers and safety advocates criticized the agency, saying it was on the sidelines and giving employers a pass to allow the disease to spread in workplaces. "In the face of a lot of public pressure, OSHA re-evaluated some of its policies," Conn stated.

It was "a little frustrating that OSHA said employers have to do more without concrete guidance on what that more is," said John Ho, an attorney with Cozen O'Connor in New York City. He added, "I don't know if [investigating whether employees contracted coronavirus at work is] the best use of employers' resources and time, when ultimately they will never know for sure" where employees caught the virus.

Conn noted that in OSHA's record-keeping requirement, there is an exemption from investigating the spread of colds and the flu. The exemption exists because it is almost impossible to tell if workers caught a cold or the flu at work.

Businesses "were pushing hard for the same approach with COVID-19. The rationale was just the same. [The virus] is ubiquitous—all over the country. How in the world will they be able to tell [if a coronavirus case is work-related]?" Conn asked.

Case-by-Case Analysis

Nonetheless, Conn said employers can take steps to defend themselves from OSHA citations for record-keeping violations.

If someone at work contracts the coronavirus, investigate the cause and document the investigation. If the case is not work-related, carefully document the reasons why not. This may not prevent an OSHA citation, but it can be useful for a company defending itself against paying penalties.

Conn said that an employee's COVID-19 illness is likely to be work-related if any of the following apply:

• There is a cluster of employees who have tested positive.
• An employee tests positive shortly after long-term interaction with someone else at work who also tested positive.
• A worker has regular, frequent exposure to the public.

OSHA included an exception to the recording rule: Coronavirus is not work-related if there is an alternative, nonwork explanation, Conn explained. "That's an enormous carve-out that almost swallows the entire rule," he said.

If an infected employee went grocery shopping, went to a place of worship or took public transportation, there might be an alternative explanation for contracting the coronavirus that isn't work-related. Uncovering these alternative reasons is a "burden that takes time," Conn said. But in most cases, COVID-19 "is not work-related and not recordable."

Even if there is a cluster of workers in a single work location who have the coronavirus, there could be another explanation that is not work-related. Conn noted that one employer in Chicago had taken extensive steps to control infection, but many employees in the same demographic tested positive at the facility. The employer concluded the coronavirus infection was not caused at work after learning that these employees went to the same church that continued services during the pandemic.

If an employer has a large workplace, and there are dozens of cases but the employees don't work with each other, their cases are likely not work-related, even if they are in a single workplace, Conn said.

He has prepared a questionnaire and flow chart on how to make a case-by-case determination of whether coronavirus is work-related and must be reported or recorded.

Manesh Rath, an attorney with Keller and Heckman LLP in Washington, D.C., noted that OSHA does not expect employers to perform extensive medical inquiries or conduct in-depth investigations into employees' out-of-work activities beyond these efforts:

• Asking employees how they believe they contracted COVID-19.
• Discussing with employees their work activities and activities outside of work that may have led to the COVID-19 illness.
• Reviewing employees' work environment for potential COVID-19 exposure, including whether other workers in that location have contracted COVID-19.

[SHRM Resource Spotlight: Coronavirus and COVID-19]

More Stringent Standard in California

California has issued frequently asked questions (FAQs) that, unlike the federal OSHA guidance, create a presumption of work-relatedness that employers may disprove, Conn said. "Instead of almost no cases [being] recordable or reportable, most cases are recordable or reportable in California," he said.

The California FAQs state, "If there is not a known exposure that would trigger the presumption of work-relatedness, the employer must evaluate the employee's work duties and environment to determine the likelihood that the employee was exposed during the course of their employment."

Significance of Recording Illness

"It's not just academic whether an illness goes on the log or not," Conn noted.

If an employer has a few admissions on its OSHA 300 log that coronavirus is work-related, plaintiffs may use this as evidence against employers in coronavirus-related lawsuits claiming businesses didn't do enough to control the spread of coronavirus in the workplace. While many of these lawsuits will be barred by workers' compensation statutes, some claims, such as customers', will not be barred, Conn stated.

Moreover, record-keeping violations are easy to accumulate, can cost thousands of dollars per violation and could be the "low-hanging fruit" OSHA seeks in its enforcement efforts, he said. First-time violations may be $1,000 to $5,000, but multiple willful or repeated record-keeping violations could quickly add up, as willful violations are a maximum of $134,937 per violation.