The Occupational Safety and Health Act of 1972 (OSH Act) requires most employers to keep workplace logs in which employee work-related injuries and illnesses are recorded.
In guidance issued on April 10, 2020, OSHA had previously announced that only employers in industries such as health care, emergency response, and corrections were required to record employee COVID-19 diagnoses, while most other employers were not subject to such a requirement.
As of May 19, the agency has changed this guidance.
Under this new guidance, all employers required to keep OSHA logs must record in the log instances in which:
an employee is diagnosed with COVID-19, as defined by the Centers for Disease Control and Prevention (“CDC”). The CDC defines a confirmed case of COVID-19 as “an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19.”;
the case involves one or more of the general recording criteria set forth in the OSHA regulations. An injury or illness meets the general recording criteria if it results in any of the following: 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; and
the exposure was work-related. The relevant OSHA regulations provide that an employer must consider a case to be work related “if an event or exposure in the work environment . . . either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.”
Using its “enforcement discretion”, OSHA will look at the following factors in determining whether a COVID diagnosis was work-related:
The reasonableness of the employer’s investigation into work-relatedness. In most circumstances, investigations will be sufficient when upon learning of an employee’s COVID-19 illness the employer (1) asks the employee how they believe they contracted the illness; (2) while respecting employee privacy, discusses with the employee their work and out-of-work activities that may have led to the illness; and (3) reviews the employee’s work environment for potential SARS-CoV-2 exposure.
Evidence that a COVID-19 illness was work-related is limited to information reasonably available to the employer at the time it made its work-relatedness determination, however if the employer later learns additional information, it will also be taken into account in determining whether the employer made a reasonable work-relatedness determination.
Certain types of evidence may weigh in favor of work-relatedness including:
when several cases develop among employees who work closely together;
if the illness is contracted shortly after lengthy, close exposure to another employee or customer who has a confirmed case of COVID-19 and there is no alternative explanation; and
if the employee’s job duties involve frequent exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
Certain evidence may weigh against work-relatedness, including
if the employee is the only worker to contract COVID-19 in their vicinity and their job duties do not include having frequent contact with the general public; and
if the employee, outside the workplace, closely and frequently associated with someone who has COVID-19, who is not a coworker, and who exposed the employee during the period in which that person was likely infectious.
The guidance did not change prior regulations concerning the recording of workplace injuries/illnesses.
Employers with fewer than ten employees, or those in certain specified low hazard industries, are not required to log injuries/illnesses; those employers need only report work-related COVID-19 cases that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.
While not determinative to an investigation of work-relatedness, adherence to mandatory safety standards and sector-specific protocols could reasonably mitigate employee exposure to the coronavirus.
As part of reopening the economy, the Massachusetts Department of Public Health and the COVID-19 Command Center have developed Mandatory Workplace Safety Standards.
These are new standards for all workplaces designed to reduce the risk of new COVID-19 transmission to employees and customers.
Among other requirements, these standards set forth that a business must:
Require face masks and coverings for all employees;
Provide handwashing supplies and capabilities;
Establish and maintain cleaning protocols specific to the business;
Sanitize high touch areas, such as workstations, equipment, screens, doorknobs, restrooms throughout work site;
Ensure and implement social distancing protocols as much as possible between workers as well as customers;
Ensure employees who are displaying COVID-19-like symptoms do not report to work; and
Establish a plan for employees getting ill from COVID-19 at work and a return-to-work plan.
These standards apply to all workplaces that are open or reopen. However, please note that some of these standards are modified by the Sector-Specific Protocols so it is important to review those closely where applicable (to offer one example, masks and face coverings must only be worn in an office setting when employees cannot keep a distance of six feet apart).
To date, the state also has issued the following Sector-Specific Protocols and Best Practices with which businesses must also comply, as applicable, in order to reopen:
Please bear in mind this remains a fluid and evolving situation. The information provided here does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only