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May 26, 2020 | Legal Advisory

Beginning May 26, 2020, employers with more than 10 employees must undertake a reasonable investigation to determine if an employee’s diagnosis of COVID-19 is work-related and recordable under the Occupational Safety and Health Administration (“OSHA”) requirements. On May 19, 2020, OSHA published new enforcement guidance outlining when employers are obligated to record employee COVID-19 cases, and announcing that previously issued enforcement guidance dated April 10, 2020 would be rescinded. The previous guidance only required most non-health care employers to determine if a case of COVID-19 was work-related when the employer was presented with “objective evidence” that the illness was work-related. Now, all employers with OSHA recording obligations must conduct a reasonable evaluation of whether a COVID-19 illness is work-related and thus recordable.

The OSHA guidance acknowledges the difficulty employers face when determining whether a COVID-19 case is work-related. Nevertheless, COVID-19 is a recordable illness and must be reported on the OSHA injury and illness logs if:

1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention;
2. The case is work-related; and
3. The case involves one or more of the general recording criteria required by the regulation.

OSHA’s new guidance directs the Agency’s Compliance Safety and Health Officers to consider a number of factors when determining if an employer has met its obligation to make a reasonable determination of whether a COVID-19 case is work-related. The factors that will be considered by OSHA include the following:   

• The reasonableness of the employer’s investigation: When employers learn of an employee’s illness they should: (1) ask the employee how the employee believes he or she contracted COVID-19; (2) while respecting employee privacy, inquire about the employee’s activities both at work and outside of work that may have led to the illness; and (3) review the employee’s work environment for potential exposure. Employers are not required to undertake extensive medical inquiries.
• The evidence available to the employer: Employers should consider all information reasonably available in determining whether an employee’s illness is work-related. Any new information received after a work-relatedness determination should be used to evaluate whether an initial determination was reasonable.
• The evidence that COVID-19 was contracted at work: Employers should consider all reasonably available evidence to determine whether an employee contracted COVID-19 at work. In making that determination, employers should consider those factors that demonstrate the illness was likely contracted at work, among them the following:
  • If several cases develop among workers who work closely together;
  • If an employee’s illness is diagnosed shortly after lengthy close contact with a customer or coworker who has a confirmed case of COVID-19;
  • If an employee’s job duties include frequent close contact with the general public in a locale with widespread transmission of COVID-19.

If, after conducting a good faith inquiry, the employer is unable to determine whether the COVID-19 case is work-related, the employer is not required to record the illness.  

This advisory was prepared by Liam O’Connell in Nutter’s Labor, Employment and Benefits practice group. For more information, please contact Liam or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.