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OSHA Clarifies Virus Reporting Requirements for Employers (1)

March 13, 2020, 4:07 PMUpdated: March 13, 2020, 7:53 PM

Employers must track and report instances of workers contracting Covid-19 on the job, not those stemming from exposure to the new coronavirus while off the clock, OSHA said.

The update—in new guidance released Friday—comes as many workplaces are limiting operations and urging employees to work from home due to the spread of the novel coronavirus. The guidance clarifies employers’ obligations to log injuries and illnesses at work.

The following conditions must be met in order for a business to be subject to reporting mandates as a result of the virus: The employer must be dealing with a confirmed case of Covid-19 that is work-related and meets recording criteria set in OSHA regulations, such as days away from work or requiring medical treatment beyond first aid, said the Occupational Safety and Health Administration.

The new guidance still leaves confusion about how to prove whether a worker actually contracted the virus on the job, said Howard Sokol, co-chair of the Holland & Knight LLP’s OSHA, Workplace Safety and Whistleblower Claims team.

“The question still has to be asked, whether the contraction of the virus, if such can actually be determined ... is as a result of the at-issue employee performing his or her job duties and responsibilities,” Sokol said.

“If and when a second or more employees present symptoms consistent with the virus, even in a low risk environment, the employer will, at that point, certainly be on heightened awareness that a work-related exposure may have caused or even contributed to these infections,” Sokol said, adding that employers should then take precautions to safeguard the work environment. “The employer may also have to take on the added responsibility to take on testing workers.”

Health-care Worker Focused?

OSHA will have a hard time proving whether a worker contracted the disease on the job, said Ed Foulke, a partner at Fisher & Phillips LLP’s Atlanta office.

Foulke said that “once a second person in direct proximity to an infected worker discovers he has it, it most likely came from on-the-job exposure,” referring to a recent incident in which an NBA player for the Utah Jazz jokingly touched all the tape recorders that were placed before him on a table during a media session, and then later was diagnosed with the virus.

Foulke added that while OSHA’s latest clarification on work-related virus exposure may be intended to cover all workers, the new guidance could be interpreted to focus primarily on health-care workers and first responders who have a higher likelihood of being exposed to the disease.

Sokol said he didn’t read the new guidance that “narrowly.”

Lawrence Halprin, partner at Keller and Heckman LLC in Washington, D.C., said the new guidance may be all for naught.

“Realistically, unless there’s an incident where an employee is hospitalized and that employer reports to OSHA, the agency probably won’t find out about these cases,” Halprin said.

OSHA mandates hundreds of thousands of employers with 10 or more workers to keep a log of every workplace injury or illness that requires medical treatment beyond first aid or keeps a worker away from work for at least one day. Failure to keep accurate records can lead to the agency citing the company and possibly proposing fines.

(Updated with additional reporting throughout. )

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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