Employers Must Investigate Whether Coronavirus Infections Are Work-Related

​All employers, not just those with high levels of coronavirus exposure in the workplace, now must determine whether employees who have COVID-19 contracted it at work. The new Occupational Safety and Health Administration (OSHA) requirement reverses previous guidance.

Employers will have to dig for information about the cause of an employee's virus infection while respecting the worker's privacy. If the employee caught the coronavirus at work or while performing work-related activities, the employer must record the illness on the OSHA Form 300.

"To comply with the new enforcement guidance, whenever an employee becomes ill with COVID-19, the employer needs to conduct a mini-investigation," said Annette Idalski, an attorney with Chamberlain Hrdlicka in Atlanta.

OSHA's guidance, effective May 26, is a change from the agency's position in April 10 guidance that only employers in the health care industry, emergency-response organizations and correctional institutions would be required to mandate work-relatedness determinations about coronavirus, with some exceptions, noted Manesh Rath, an attorney with Keller and Heckman LLP in Washington, D.C.

The Occupational Safety and Health Act covers most employers. Nonetheless, employers with 10 or fewer employees and certain employers in low-hazard industries have no recording obligations, and they must report only work-related coronavirus illnesses that result in a fatality or an employee's in-patient hospitalization, an amputation or the loss of an eye.

Three Criteria

Under the new guidance, a COVID-19 case must be recorded on the OSHA 300 log if three criteria are met, explained Kevin Hess, an attorney with Fisher Phillips in Columbus, Ohio. Those criteria are:

• A confirmed case of COVID-19.
• Work-relatedness.
• Illness resulting in death, days away from work, restricted work or the transfer to another job, medical treatment beyond first aid, or the loss of consciousness.

Someone who tests positive for coronavirus typically will miss work and meet the third criteria, according to John Ho, an attorney with Cozen O'Connor in New York City.

[SHRM members-only how-to guide: How to Complete the OSHA Form 300]

When Is Coronavirus Work-Related?

The criterion employers are struggling with is whether the positive test for coronavirus is work-related, Ho noted.

"Employers cannot assume that an employee contracted COVID-19 from going to the grocery store or otherwise being out in public," said Kathryn Willis, an attorney with Burr & Forman in Mobile, Ala. Instead, employers must make reasonable efforts to determine if the exposure might be work-related.

She said those reasonable efforts include:

• Asking the employee limited questions about how he or she believes COVID-19 was contracted.
• Making inquiries about the employee's work and nonwork activities, and possible exposure, leading up to the diagnosis.
• Investigating the employee's work environment to determine whether COVID-19 exposure was possible. This might include considering whether other employees in the work area have tested positive, the employee's job duties and exposure to the public, and whether the work areas are crowded and do not facilitate social distancing.

Employers don't need to conduct extensive investigations into nonwork activities, other than asking these questions and considering readily available evidence, Rath said.

Employers should avoid extensive medical inquiries that violate an employee's right to privacy and the Americans with Disabilities Act or other laws, Willis added.

An employer shouldn't ask whether an employee's spouse or child has COVID-19, Ho said. The employer may ask how the employee thinks he or she got the virus and whether it was away from work. If the employee responds that someone in his or her household contracted it recently, the employee's coronavirus likely is not work-related, Ho said.

An employer can reasonably conclude that a case is likely not work-related if an employee is the only worker to contract COVID-19 in his or her work area and the employee's duties don't include contact with the public.

An employer is required to determine the likelihood that the employee contracted COVID-19 in the workplace only based on information reasonably available to it at the time of its investigation, said Michael DeLarco, an attorney with Hogan Lovells in New York City. The employer must update the investigation if it later learns more information related to an employee's COVID-19 illness. "Thus, I would expect that employers will, in some instances, need to update their recordings [of occupational illnesses] as new information relevant to its work-related determinations is uncovered," DeLarco said.

OSHA Oversight Hearing

Democratic members of Congress and labor unions have pushed OSHA to develop enforceable standards to protect workers from the coronavirus, but at a congressional hearing on May 28, Loren Sweatt, OSHA's principal deputy secretary, defended the agency's preference for relying on existing standards and newly issued guidance, which she said offer more flexibility.

U.S. workers have filed about 5,000 coronavirus-related complaints of unsafe conditions and nearly 1,400 whistleblower complaints alleging they were fired or otherwise punished for raising coronavirus concerns. Sweatt said the agency is actively investigating those complaints, along with coronavirus-related workplace fatalities, but it is not targeting specific industries for enforcement.

While it has issued only one related citation so far for a record-keeping violation, OSHA has six months to wrap up an investigation, Sweatt noted, suggesting that more enforcement actions may be forthcoming.

In meat processing specifically, where large clusters of workers have been infected, she said OSHA has 58 complaints or enforcement activities and has already been inside 10 facilities. OSHA worked with the U.S. Centers for Disease Control and Prevention to develop specific guidance for meatpacking facilities, which includes recommendations to keep workers six feet apart or provide partitions between them.

OSHA is also trying to hire an additional 50 inspectors to strengthen its capabilities, Sweatt said.

Sometimes, the mere notification of a complaint will cause an employer to change its processes to offer better protection or reinstate a whistleblower who was fired, she said. "I do think employers are attempting to achieve the best compliance that they can."

SHRM staff writer Nancy Cleeland contributed to this article.