The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) generally requires employers to report and record workplace injuries. OSHA has published revised guidance regarding its recordkeeping requirements for employers. Beginning May 26, 2020 and until further notice, OSHA is requiring most employers with more than 10 employees to record work-related employee COVID-19 illnesses.
While this applies to many employers in the health care industry with more than 10 employees, certain providers, including, but not limited to, medical practices, dental practices, outpatient care centers and diagnostic laboratories, are partially exempt, which means they are required to report to OSHA only work-related employee COVID-19 illnesses that result in a fatality, in-patient hospitalization, amputation, or loss of an eye. Providers that are not partially exempt must record and report all employee related COVID-19 illnesses regardless of the outcome.
Providers should also be aware that some states are adopting recordkeeping requirements that are similar to the OSHA requirements, but do not have partial exemptions. On May 31, 2020, the New York State Department of Health issued guidelines for dentistry and other providers, which require, among other things, that employers report to the Department of Health instances where employees test positive for COVID-19.
OSHA’s new guidance is intended to ease the employer’s burden of determining whether the employee’s COVID-19 illness is work-related. The guidance sets forth a series of considerations for employers to reference to make a reasonable assessment of whether the illness is work-related. OSHA will consider the reasonableness of the employer’s investigation into work-relatedness to determine whether the employer has met its legal obligations.
To meet its recording obligations, the employer must first determine whether the illness is work-related. In most instances, doing the following will satisfy the employer’s obligations:
(1) ask the employee how he believes he contracted the COVID-19 illness;
(2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and
(3) review the employee’s work environment for potential SARS-CoV-2 exposure.
The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19.
Based on the information reasonably available at the time, the employer should make its determination as to whether the illness is work-related. If more information becomes available at a later time, then such information should be considered by the employer as to whether its determination should be modified.
OSHA advises that certain types of evidence may weigh in favor of or against work-relatedness. For instance, evidence in favor of a finding that the illness is work-related includes:
- When several cases develop among workers who work closely together and there is no alternative explanation.
- If the illness is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
- If the employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
Evidence against a finding that the illness is work-related includes:
- If the employee is the only worker to contract COVID-19 in the vicinity and the employee’s job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- If the employee, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who: (1) has COVID-19; (2) is not a coworker; and (3) exposes the employee during the period in which the individual is likely infectious.
Employers should give weight to evidence of the reason for the illness provided by medical providers, public health authorities, or the employee.
If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness. If the illness is found to be work related it should be recorded as a respiratory illness and should be coded as such on the OSHA Form 300.
Whether required by OSHA or state law, providers may choose to track such information to allow for contact tracing.
In addition, OSHA suggests that employers implement safety training, and provide protective equipment and machine guarding. Safety training may also be a requirement under state law. Such training may allow an employer to rebut any allegations that its employees are exposed to hazards in violation of OSHA by showing that employees received safety trainings or are well-supervised during allegedly dangerous operations.
If you have any questions regarding the impact of the OSHA recordkeeping requirements on your practice or healthcare business, please do not hesitate to contact us.