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Small Business: Companies face recording requirements for COVID-19

John Diviney, a partner in the employment and

John Diviney, a partner in the employment and labor practice at Rivkin Radler LLP in Uniondale. Credit: Jim Lennon

Companies have new obligations on recording coronavirus-related incidents in the workplace.

The Occupational Safety and Health Administration has issued updated guidance to applicable employers on when they are responsible for recording cases of coronavirus and dictates that employers make reasonable efforts to determine whether a particular case of coronavirus is work-related.

Some experts say this puts added burden on employers and can be difficult given it’s not always cut and dry how an employee may have contracted COVID-19.

“It certainly will increase the burden on many employers from a resource standpoint,” says Brad Hammock, a shareholder in the McLean, Virginia, office of Littler Mendelson PC.

In typical work-related injuries, if someone say sprains an ankle, it’s fairly easy to determine whether it happened at work or not, he says. With COVID-19 it may not be so clear deciphering if the disease was contracted at work, he says.

Under the guidance, more in-depth inquiry is needed on the employer’s part than just simply asking if they have been outside or at a bar, says Hammock.

It requires a reasonable investigation into the illness' relation to work, says Hammock, noting that unlike the common cold and seasonal flu, OSHA has deemed COVID-19 a recordable illness.

Spared from the recording requirements are employers with 10 or fewer employees and certain employers in low-hazard industries like law firms, he says. Those firms need only report work-related COVID-19 illnesses that result in a fatality or an employee’s hospitalization, and certain other instances, says Hammock.

For affected employers, if the COVID incident was deemed work-related, it would be recorded on OSHA Form 300, says Mark Reinharz, an employment law partner at Bond, Schoeneck & King in Garden City.

This is the latest updated guidance regarding COVID reporting requirements, he says.

Previous guidance issued in April put less onus on employers to deeply investigate whether COVID was work-related, he says.

“This guidance is a little more clear, but it’s also a little more burdensome,” he says.

To be recordable, the following criteria must be met: it is confirmed as a coronavirus illness; it’s work-related; and the incident involves one or more of OSHA’s general recording criteria, says Reinharz. There are specific definitions for work-related and recording criteria.

OSHA also gives evidence examples in the guidance of how it might be work-related, such as when several cases develop among workers who work closely together and there is no alternative explanation, says John Diviney, a partner in the employment and labor practice at Rivkin Radler LLP in Uniondale.

Still, that element of determining that an illness is related to work is “not that easy to establish,” says Diviney.

OSHA does state “employers, especially small employers, shouldn’t be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area.”  

The guidance notes it’s sufficient to ask the employee how he/she believes they contracted the illness; and while respecting their privacy, discuss with them work and out-of-work activities that may have led to the illness; and review the employee’s work environment for potential COVID-19 exposure, says Diviney.

Guidance further states “evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination.”

“OSHA’s enforcement will focus on the reasonableness of the employer’s investigation into causation,” says Diviney.

Angelo Garcia III, principal industrial hygienist at Syosset-based Future Environment Designs, an indoor air quality and industrial hygiene consulting firm, says it pays to prepare some questions ahead of time to help determine if the illness is work-related. This way you are asking consistent questions to everyone, he says.

He recommends running the questions by an attorney to avoid running afoul of discrimination laws.

Also have a process for conducting the investigation and then document efforts if OSHA raises any questions, says Garcia.

Also consider prevention can help avoid workplace incidences, says Charles Hunt,  chief operating officer at ABLE Safety Consulting in Massapequa Park, which provides OSHA compliance assistance and training.

This includes having employees fill out daily affirmations they haven’t been in close contact with a person with COVID-19 and aren’t experiencing COVID-19-related symptoms, taking their temperature before shifts start to ensure they are fever-free, social distancing, wearing proper respiratory protection, sanitizing work areas, etc., he says.

If employers focus on prevention rather than recording, they will decrease the risk of an employee contracting the virus in the workplace, says Hunt.

It’s smart considering OSHA that has said it’s increasing in-person workplace inspections. .

“I’ve seen in my practice an increase in enforcement both virtual and on-site in COVID-related issues,” says Hammock.

Fast Fact

COVID-19 is a big concern in the workplace. According to a Gallup survey, 46% of U.S. workers are concerned about being exposed to COVID-19 at work.

Source: https://news.gallup.com/poll/312461/amid-slow-return-workplaces-covid-precautions-abound.aspx

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