As state leaders continue to develop guidelines for reopening safely, you may have questions about the requirements for maintaining a safe environment for your business. Specifically, you may be wondering how to document the steps you have taken if someone in your workforce is exposed to COVID-19 and tests positive for the virus.
The Occupational Safety and Health Administration (OSHA) is responsible for establishing and enforcing safe working environments for employees through the use of training, outreach, education, and assistance. On May 19, 2020, OSHA released a revised memorandum on recordkeeping in the midst of the coronavirus pandemic (see U.S. Dep't of Labor, Occupational Safety and Health Admin., Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), , https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19).
OSHA generally requires business owners with more than 10 employees to keep records of and report all serious work-related illnesses. OSHA recognizes COVID-19 as a recordable illness. As a result, even smaller businesses may need to report certain work-related COVID-19 illnesses if a work-related COVID-19 illness causes an injury requiring in-patient hospitalization, amputation, loss of sight, or a fatality. This means that businesses should create and maintain records at the worksite for at least 5 years in compliance with OSHA standards. As an employer, you are required to record a COVID-19 case in your workplace if it meets the following three criteria:
1. The employee has a confirmed case of COVID-19.
2. The employee's case is work-related.
3. The illness resulted in death or significant injury and restricted work for the employee.
Note: The mere existence of a work-related COVID-19 case does not establish a violation of OSHA standards in and of itself.
Because of the nature of COVID-19, tracing its origin is challenging, and OSHA acknowledges that fact as it seeks to enforce these regulations. This flexibility in enforcement is not a free pass for employers, however. OSHA expects employers to investigate the origin of the illness without infringing on the employee's privacy. An investigation is especially important to determine whether the illness is work-related or not. For instance, if an employee has tested positive for the virus, multiple cases of the virus exist in the workplace among employees who work closely together, and alternative options do not explain its occurrence, OSHA guidance permits a finding that the COVID-19 case is work-related.
In enforcing these regulations, OSHA pays close attention to the reasonability of an employer's origin investigation. In addition to observing trends pertaining to contact between workers who are sick, OSHA advises employers to examine the employee's work environment for possible exposure to the COVID-19 virus. Moreover, an employer who is aware of an employee's case may ask where the employee believes the virus was contracted in order to gather more information. In making such inquiries, employers are encouraged to respect their employees' privacy rights.