Coronavirus Update 10-14-2020: Reporting an employee who tests positive

When an employee tests positive, an employer has certain reporting obligations. These obligations fall into two categories—reporting to OSHA and reporting to your state or local health agency under state law.

OSHA

While OSHA has remained largely silent on mandates for businesses related to COVID-19, it has published specific guidance on when an employer must record and report COVID cases at work.

Under OSHA's recordkeeping requirements, COVID-19 is a recordable illness, and employers must record cases of COVID-19 in their OSHA logs, if:

1. The case is a confirmed case of COVID-19;
2. The case is work-related; and
3. The case involves death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed health-care professional.

You should assume numbers 1 and 3 are met when an employee reports a positive test. Criteria number 2—work-relatedness—will almost always be the tripping point for recording vs. non-recording.

According to OSHA, an employer must make a "reasonable determination" of work-relatedness in determining whether to record an employee's positive test. In making this determination, OSHA relies on three factors:

• The reasonableness of the employer's investigation. OSHA does not expect employers to undertake extensive medical inquiries. Instead, OSHA usually considers it sufficient for an employer (1) to ask the employee how s/he believes s/he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee 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 COVID-19 exposure. 
• The evidence available to the employer at the time it made its work-relatedness determination.
• The evidence that a COVID-19 illness was contracted at work. OSHA states that the following information is relevant to this determination—
• 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 his 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 she is the only worker to contract COVID-19 in her vicinity and her 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 he, 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.
• CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.

Per OSHA, "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."

OSHA's reporting rules also apply to confirmed workplace cases of COVID-19. That is, for confirmed work-related cases of COVID-19—

• an employer must report to OSHA in-patient hospitalizations within 24 hours of knowing both that an employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19; and
• an employer must report employee fatalities the occur within 30 days of the workplace incident (in this case, the exposure to COVID-19) and within 8 hours of the actual fatality.

Violations of these recording or reporting requirements are subject to OSHA's traditional enforcement and penalties. 

State Law

States have their own COVID-19 reporting requirements. For example, Ohio mandates that businesses "contact their local health district about suspected cases or exposures" of COVID-19. This reporting is critical so that the local health department can undertake the contact tracing necessary to identify close contacts and limit pre-symptomatic and asymptomatic spread. 

Employers should check with their legal counsel on their state-specific reporting requirements.

* Photo by Markus Winkler on Unsplash