COVID-19: Reporting or Recording a Diagnosed Employee to OSHA
OSHA Guidance Updated 4/22/2020 OSHA: COVID-19 Guidance for the Construction Workforce
As most employers are aware, certain work-related injuries or illnesses are recordable under certain circumstances. For those employers not exempt from OSHA’s record-keeping requirement, many employers are wondering whether they must record a confirmed case of COVID-19 as a work-related injury or illness. First, let’s discuss the other elements that make a work-related injury or illness recordable. The injury or illness must result in medical treatment (beyond first aid), restricted duty, or days away from work imposed by the treating physician. A COVID-19 diagnosis will most certainly result in medical treatment or days away from work, or both.
OSHA has provided additional guidelines for employers in making the recordable or not determination. According to OSHA, employers are only responsible for recording cases of COVID-19 if, in addition to the first requirement above: (1) the case is a confirmed case of COVID-19; and (2) the case is work-related, as defined by 29 CFR 1904.5. Under these guidelines, a person with a presumptive positive or who is under investigation for COVID-19 would not qualify as a recordable injury or illness even if the employee has days away from work. Given the pervasiveness of COVID-19 and multiple exposure points in a person’s life, it may be very difficult to determine whether they contracted the illness while they were engaged in work activities. However, employers should carefully consider the occupational hazards associated with that particular job before deciding whether the employee contracted the illness as a result of work.
Whether an employer is required to report that an employee has a confirmed diagnosis of COVID-19 is another issue. Generally, an employer must report to OSHA any worker fatality within 8 hours and any amputation, loss of eye, or hospitalization of a worker within 24 hours. Of course, the injury or illness must also be work-related to be reportable, but assuming that is established, then employers should be prepared to report to OSHA a confirmed diagnosis of COVID-19 that results in a fatality or hospitalization.
To learn more, view helpful videos, or read additional articles about COVID-19, please visit Schwabe's COVID-19 resource page.