New OSHA COVID-19 Guidelines for Employers

Every Connecticut employer with more than 10 employees and not in a designated low-hazard industry is now required to determine whether any employee with COVID-19 contracted the virus at work.

This requirement revises earlier advice from the Occupational Safety and Health Administration, and remains subject to further change as the pandemic evolves.

The new guidance states that if an employer finds that an employee did, in fact, contract the illness while at work or while performing work-related duties—OSHA requires that employer to report the incident on an OSHA Form 300.

This new requirement is a change from OSHA guidance issued April 10 and reported by Kainen, Escalera & McHale. In that earlier guidance, only healthcare, emergency response, and correctional institution employers were required to investigate workplace infections.

Specific Reporting Requirements

Connecticut employers with 10 or fewer employees and certain employers in low-hazard industries still have no COVID-19 recording obligations beyond the reporting of work-related coronavirus illnesses that result in death, in-patient hospitalization, amputation, or the loss of an eye.

Employers must file a Form 300 if the following conditions are all met:

• A confirmed case of COVID-19 is discovered.
• The illness appears to be work-related.
• The infection results in death, days away from work, restricted work, or the transfer to another job, medical treatment beyond first aid, or the loss of consciousness

Was the Infection Work-Related?

The rule here is straightforward. If you have an employee who tests positive for the virus, you must make a good faith effort to sort out whether the illness was contracted on the job.

That good effort should include asking the employee how they got infected, inquiring about their various work and non-work activities, and investigating whether it is possible that the infection could have occurred at work.

Because of the difficulty with determining work-relatedness, OSHA is exercising enforcement discretion to assess employers’ efforts in making work-related determinations.

Therefore, in determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, OSHA has advised enforcement officers to review certain types of evidence which may weigh in favor of or against work-relatedness.

Checklist

For instance:

• COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
• An employee’s COVID-19 illness is likely work-related if it 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.
• An employee’s COVID-19 illness is likely work-related if their job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
• An employee’s COVID-19 illness is likely not work-related if they are the only worker to contract COVID-19 in their vicinity and job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
• An employee’s COVID-19 illness is likely not work-related if they, 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.

Worker Safety

OSHA’s latest guidance further provides that 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.

Rather, OSHA emphasizes that in all events, it is important as a matter of worker health and safety, as well as public health, for an employer to examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.

It is also vital that employers avoid probing too deeply into an employee’s non-work activities and medical history.

Accordingly, it is important to avoid asking directly whether an employee’s  family member might also have COVID-19. Let the employee volunteer that information.

Finally, if an initial investigation turns up no work connection to the illness, but later information contradicts the original finding, the Form 300 should be updated.

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About the author: Shel Myers is an attorney at the labor and employment law firm Kainen, Escalera & McHale in Hartford.