If you are an employer and have already opened or will soon (re)open your workplace, the U.S. Occupational Safety and Health Administration (OSHA) has recently revised employer guidelines, (went into effect on May 26, 2020), for tracking and recording cases of employees, infected with COVID-19, to determine if the virus was contracted in the workplace.
Updated Guidelines
Do the guidelines affect your company?
These updated guidelines DO NOT affect your company if:
- you are an employer with 10 or fewer employees
- you are an employer in a low hazard industry
So if the above is applicable to your company, then you will only need to "report work-related COVID-19 illnesses that result in a fatality or an employee's in-patient hospitalization, amputation, or loss of an eye."
Employer Record Keeping Requirements
Why do employers need to keep records?
Basically, an employer should document and save those documents, (keep records), to show due diligence towards whatever finding the employer makes about an employees COVID-19 infection. In fact, OSHA will exercise its discretionary enforcement power, "to assess employers' efforts in making work-related determinations."
A warning concerning use of "discretionary"! In this case "discretionary" is not necessarily a safe or friendly term since it can mean findings of compliance or non-compliance are totally at the will (choice) of OSHA. Therefore, employers should abide by the guidelines and take the record keeping requirements very seriously.
When should an employer investigate the cause of an employees infection?
Within certain parameters, employers are required to conduct investigations about the cause of an employees COVID-19 infection. However, OSHA has also said that "given employee privacy concerns and most employers' lack of experience in this area", employers "should not be expected to undertake extensive medical inquiries."
Additionally, OSHA notes that it "is sufficient in most circumstances for the employer" to ask the employee how they think they caught COVID-19, and "while respecting employee privacy, discuss with the employee his work and out-of-work activities" and review the work environment. What this means is that employers should not assume that an employee has contracted COVID-19 outside of the workplace and should, instead, make reasonable efforts to find out, like asking the employee limited questions (work and non-work activities), about how he or she believes they contracted the virus.
Collected Information
How should the investigation information be collected & tracked?
Many methods, (i.e.; symptom questionnaires, interview question and answer notes), can be used to track and record an employers investigation concerning a determination of whether an employee has been infected with COVID-19 at the workplace. However, employers should ensure data minimization principles are followed both in terms of collection and retention of employee health data.
Recording of COVID-19 Infection
When does an employer have to RECORD a COVID-19 infection?
OSHA deems an employer only has to make a recording of an actual COVID-19 employee infection if it is found the employee contracted the virus from the workplace. Otherwise, if the employer makes a reasonable and good faith inquiry but still "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".
Since OSHA notes these guidelines are limited to the current Coronavirus pandemic, employers should frequently check for updates at www.osha.gov/coronavirus.