We Just Learned We Have a COVID-Positive Employee: Do We Have to Tell OSHA?Employers long have been required to record and report work-related injuries and illnesses to OSHA. A new question in the pandemic environment is whether you have to record an employee who tests positive for COVID-19.

On April 10, 2020, the Occupational Safety & Health Administration (OSHA) issued interim guidance for the enforcement of employer recording requirements arising from COVID-19 illnesses. The guidance will remain in effect during the “current public health crisis.” The guidance clarifies that an employee’s illness is recordable if it:

If you determine that a COVID-19 illness is recordable, you should code them as respiratory illnesses on OSHA Form 300 and abide by employee requests to not include an employee’s name on the log. (Accordingly, ask the employee if he or she does not want a name included on the log.)

With respect to the second requirement above, healthcare industry, emergency response, and correctional institution employers must continue to make work-relatedness determinations pursuant to 29 CFR § 1904 (Recording and Reporting Occupational Injuries and Illnesses). However, for employers in other industries, OSHA will not enforce 29 CFR § 1904 unless “[t]here is objective evidence that a COVID-19 case may be work-related” and such evidence is reasonably available to the employer. OSHA’s intent is to help employers focus efforts on mitigating COVID-19 impacts through implementation of good workplace hygiene and other safety protocols rather than waste time on difficult work-relatedness decisions.

The interim guidance does not offer insight on what constitutes “objective evidence” that a COVID-19 infection may be work related, but the OSHA regulations may be instructive. An illness is work related “if an event or exposure in the work environment . . . caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.” Consider then the following scenario:

Employee A tests positive for COVID-19 on Monday and reports this illness to his employer. A week later Employee B and Employee C, who work closely with Employee A, also test positive for COVID-19.

In this example, Employee A’s positive result would likely not qualify as “work related” under the interim guidance because no prior evidence of COVID-19 in the workplace existed. However, the positive results for Employee B and Employee C may satisfy the “objective evidence” standard of the guidance. In the absence of an alternative explanation, a prior positive test of an employee with close contact with employees who are later confirmed to be ill may be “objective evidence” that the subsequent COVID-19 infections are “work related.” Similarly, positive tests from multiple individuals in the same department or group in a workplace may satisfy the “objective evidence” standard.

The illustration above is overly simplified and probably does not reflect more complicated, real-world workplace interactions. Rather than rely on such examples, it is important that you review the interim guidance and take appropriate steps to ensure compliance. If you have any questions about OSHA recordkeeping and reporting requirements or other issues related to COVID-19, please feel free to contact John Hargrove, Aman Kahlon, Chris Selman or Alex Thrasher.

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Photo of John W. Hargrove John W. Hargrove

John Hargrove is chair of the Labor and Employment Practice Group and is a Fellow in the American College of Labor and Employment Lawyers. He regularly represents public and private companies in mining, construction, manufacturing, medical, communications and warehousing industries, among others. He…

John Hargrove is chair of the Labor and Employment Practice Group and is a Fellow in the American College of Labor and Employment Lawyers. He regularly represents public and private companies in mining, construction, manufacturing, medical, communications and warehousing industries, among others. He also represents municipal and quasi-public organizations such as police and fire departments and school boards. John also has represented several nonprofit agencies, ranging from national sports organizations to small local charities. View articles by John.

Photo of Amandeep S. Kahlon Amandeep S. Kahlon

Aman Kahlon represents owners, general contractors, and subcontractors. His experience ranges over a wide variety of disputes. He advises clients on delay, interference, defective design, and negligence claims. Aman also devotes a significant portion of his practice to contract review, drafting and negotiation…

Aman Kahlon represents owners, general contractors, and subcontractors. His experience ranges over a wide variety of disputes. He advises clients on delay, interference, defective design, and negligence claims. Aman also devotes a significant portion of his practice to contract review, drafting and negotiation; contract and claims administration; and lien and bond law issues.

Additionally, Aman has substantial compliance experience in consumer financial services. He has assisted in the development of audit testing programs and foreclosure policies and procedures for several clients. He also regularly participates in the auditing and remediation of clients’ foreclosure practices. View articles by Aman.

Photo of J. Christopher Selman J. Christopher Selman

Christopher Selman is a litigator, representing clients in a variety of industries, such as construction, government contracting, energy, and real estate.

Christopher’s construction practice involves the representation of owners, EPC contractors, general contractors, subcontractors and suppliers in a variety of issues and projects…

Christopher Selman is a litigator, representing clients in a variety of industries, such as construction, government contracting, energy, and real estate.

Christopher’s construction practice involves the representation of owners, EPC contractors, general contractors, subcontractors and suppliers in a variety of issues and projects, both public and private. Christopher has experience managing construction disputes across the United States and abroad, including Alabama, Florida, Illinois, Kansas, Maryland, Nevada, North Carolina, South Carolina, Texas, the Republic of Panama, Turkey, and the Dominican Republic.

Photo of Alexander G. Thrasher Alexander G. Thrasher

Alex Thrasher is an attorney in the Construction Practice Group who represents owners, general contractors and subcontractors across the country in complex commercial disputes. In addition, Alex advises clients on a range of other legal issues, including strategic business and project planning, contract…

Alex Thrasher is an attorney in the Construction Practice Group who represents owners, general contractors and subcontractors across the country in complex commercial disputes. In addition, Alex advises clients on a range of other legal issues, including strategic business and project planning, contract drafting, negotiation and administration, government contracting, and lien and bond claims. He also represents and advises clients in real estate transactions and other general commercial matters.