By Avi Meyerstein

Law360 (March 20, 2020, 2:42 PM EDT) --

Avi Meyerstein

One of the questions we've heard the most from clients during the current novel coronavirus crisis is whether an employee infected by COVID-19 creates a recordable illness under Occupational Safety and Health Administration rules.

What do the rules say? What does OSHA say?

Here's the short answer: In a theoretical universe, yes, a COVID-19 case can be recordable. But, in the real world, it's not clear that an employer could know that an infection was work-related. As a result, there's significant ambiguity and confusion. So, we've written a letter to OSHA,[1] urging it to announce a presumption that COVID-19 cases are not recordable.

Now for the full explanation: Generally speaking, under Title 29 of the Code of Federal Regulations Section 1904.4,[2] an employee testing positive for COVID-19 will have a recordable illness when:

• It's a new case;
  
  
• The infection is work-related, meaning that it was more likely than not contracted at or during work; and
  
  
• It resulted in certain bad outcomes, namely death, days away, restricted work or job transfer, treatment beyond first aid, loss of consciousness, or diagnosis as a significant illness by a medical professional.

The way COVID-19 works, you will probably meet the first and last of these criteria. In general, it's probably going to be a new case since no one's had this virus before this outbreak.

It's likely to be diagnosed as a significant illness. And since infected people have to be quarantined, it will probably result in days away from work (or worse).

But, we can't know if it's work-related!

The tricky part is that in order to be recordable, it must be work-related, and no one can really say where a particular coronavirus infection occurred.

Where the source of exposure is not obvious, the rule says that employers "must evaluate the employee's work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition."[3] In the past, OSHA agreed[4] that "the employer must make a determination whether it is more likely than not that work events or exposures were a cause."

In this crisis, though, that kind of evaluation is now generally going to be impossible. In the early days of the virus spreading, there was a small number of cases, and authorities were able to trace where the exposure likely occurred.

For example, in a couple of instances, corporate meetings or conferences were very likely the source of exposure since dozens of people who attended became ill soon after (while infections elsewhere were still rare).

But now, with the virus spreading freely from person to person throughout the U.S., the overwhelming majority of cases have no determined origin. As of this writing, 94% of the 10,442 cases reported by the Centers for Disease Control and Prevention remain under investigation. That number keeps climbing.

In truth, it's impossible to know where each infection occurred not only because of widespread community transmission but also because of how the virus behaves. A person's contacts at work who appear sick may just have the flu.

On the other hand, friends and family members, who have no symptoms, may actually be carrying and transmitting the virus. Some may argue that the one exception to this analysis is for those in the health care industry working with infected patients, but even then, they could be infected outside of work.

For many companies, having a recordable illness — especially an undeserved one — is a big deal. Many leading companies track their recordable injuries and illnesses closely.

They manage operations based on those numbers. They strive for better. Even more significantly, many contractors win or lose contracts based on their injury records. Even one serious recordable can present a problem in some cases.

What about reporting severe cases to OSHA?

All of this talk of recording refers to the OSHA 300 log of injuries and illnesses that you must keep in your workplace. In some cases, employers also have to notify OSHA of certain events. In particular, you must generally notify OSHA:

• Within eight hours of a work-related employee death (if death occurs within 30 days of the work-related exposure); and
  
  
• Within 24 hours of a work-related in-patient hospitalization, amputation or eye loss (if this occurs within 24 hours of the work-related exposure).

As you can see, there are two challenges with applying the reporting rule to COVID-19 cases. First, the requirement that the illness be work-related applies here, too.

As discussed above, employers will have a hard time knowing that an infection occurred at work as opposed to anywhere else in an employee's life. Second, the reporting requirement is triggered when the outcome (death, hospitalization, etc.) occurs within a certain time period following the workplace exposure.

But again, if you don't know whether workplace exposure occurred and caused the illness, you probably don't know when workplace exposure occurred.

So, will OSHA cite you? We've asked them.

What does OSHA think about this? Will they cite you if you fail to record COVID-19 cases?

For the moment, no one knows. But, it seems unlikely that OSHA will issue citations against companies that act in good faith to protect their employees and follow the rules during this unprecedented national emergency. Surely, OSHA's primary concern is supporting the response to the crisis to protect the workforce.

If it pursues any enforcement at all, I'd expect it to focus on bad actors (willful-type violations) and on serious health hazards (e.g., not record-keeping issues) — especially when the rules do not seem to fit this situation very well.

On its COVID-19 resource page,[5] OSHA might be hinting at this approach. When it reminds employers about the record-keeping requirement, it presents the requirement in the negative ("you only have to record if …") rather than the way the rule itself actually reads, which is a positive obligation ("you must record when …").

But, understandably, many employers are still confused by a rule that doesn't seem to fit this extraordinary situation well, and they want more clarity. They want to do the right thing. As a result, about a dozen Husch Blackwell LLP attorneys signed and sent a letter to OSHA, requesting that OSHA clarify the issue. The letter explains the problem and urges OSHA to announce that COVID-19 cases are presumed to be not work-related and therefore not recordable.

We'll keep you posted on the response.

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Avi Meyerstein is a partner and leader of the safety and health group at Husch Blackwell LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.safetylawmatters.com/wp-content/uploads/sites/629/2020/03/2020-03-18-Husch-Blackwell-letter-to-OSHA-regarding-recordkeeping-requirements-and-COVID.pdf.

[2] https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.7.

[3] § 1904.5(b)(2)(ii).

[4] https://www.osha.gov/laws-regs/isa/national-association-of-manufacturers-11162001.

[5] https://www.osha.gov/SLTC/covid-19/standards.html.

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