Among the many issues facing employers who have employees that have tested positive for the coronavirus, one that has not receive a lot of attention is whether an employer has a duty to report such information under its state’s workers compensation law and/or under the federal Occupational Safety and Health Act (OSHA). While this Alert is not intended to review the workers compensation laws in all 50 states, it will provide general guidance that will help employers make a decision on whether there is an obligation to report, under federal or state law, an employee who has tested positive.

When is an illness or disease work-related?

Most, if not all, state workers compensation laws provide coverage for occupational illnesses. In general, these involve situations where the nature of the occupation create a much higher risk of infection or disease than in the general public (e.g., a health care worker coming into contact with contaminated blood, or a coal miner having lung disease). One key limitation, however, is that an ordinary disease of life to which the general public is exposed are generally not included unless specific criteria are met. 77 P.S. 27.1; Va. S. 65.1-400; Tx. Rev. Civ Stat. Ann. Tit. 130, Article 8306, Sec. 20. This is why, for example, employees who miss work after apparently catching the flu from someone at work do not have a workers compensation claim and employers are not required to report those cases to their insurance carrier.

Again, speaking generally, a disease that is not specifically listed as being an occupational disease (Pennsylvania, for example, has a long list of diseases designated by statute that are considered work related) can be covered by a workers compensation act if there is clear and convincing evidence (standards vary) that (a) the cause of the disease arose out of employment and (b) did not result from a cause outside of employment.

In many ways, COVID-19 is like influenza in that it can be transmitted anywhere, not just at work. Nonetheless, employers should not automatically assume there is no duty to report a case to its insurance carrier. Rather, as set forth below, it should look at the facts of each case before making a determination.

When should employers report cases where an employee tests positive for COVID-19?

First, if an employee claims to have been infected at work, the employer should follow the standard approach and report it to its insurance carrier.

The more difficult question is what happens if the employee does not claim it was work-related? If a single employee in the workplace has tested positive, and there is no other basis for believing that the transmission occurred at work, the risk of not reporting is low.

However, if the employee works in a job where there is a high risk of transmission (e.g., a health care facility) or if additional employees test positive and there is evidence that those employees had direct contact with the first employee who tested positive, then it would be prudent for the employer to at least put its carrier on notice that there may be a claim.

Is COVID-19 a recordable event for OSHA purposes?

While OSHA normally exempts employers from recording incidents of employees contracting “common colds and the flu” in the workplace, OSHA has made clear that COVID-19 does not meet this exemption.

Thus, COVID-19 may be a recordable illness if a worker is infected as a result of performing work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

1. The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
2. The case is work-related, as defined by 29 CFR 1904.5; and
3. The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

Generally, an employer must consider an injury or illness 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. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in § 1904.5(b)(2) specifically applies. Although this determination may present a challenge in COVID-19 cases, OSHA historically takes a broad reading of recordkeeping obligations and we expect the agency will continue to do that here.

Moreover, OSHA recognizes that where an illness occurs in the work environment, there are specific exceptions where it would not be considered work-related and thus not recordable. However, most of these exceptions require that the illness be solely the result of another event and thus would be difficult to prove. For example, one exception is that the illness involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurred outside the work environment. Id.

Assuming the employer determines that the illness is recordable, then the affirmative reporting rule would also apply. In other words, employers are required to notify OSHA of a work-related fatality within eight hours or a work-related hospitalization, amputation, or loss of an eye within 24 hours.