U.S. Department of Labor Reverses Course, Requires Employers to Determine Whether COVID-19 Cases Were Work-Related

As explained in our previous legal alert, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced last month that most employers would not be required to determine if workers’ COVID-19 cases were work-related. On May 19, 2020, OSHA rescinded last month’s guidance and announced that employers are required to determine if workers’ COVID-19 cases were work-related.

The new guidance explains that employers who are required to keep OSHA injury and illness logs must determine if workers’ COVID-19 cases were job-related.  OSHA acknowledged that it may be difficult for employers to determine if a COVID-19 case was work-related, but employers are still expected to conduct reasonable investigations to determine work-relatedness.

OSHA explained that a reasonable investigation does not need to include extensive medical inquiries, but employers should ask the employees some basic questions and review available evidence.  OSHA’s guidance states that once an employer learns of an employee’s COVID-19 illness, it should:

1. 1. Ask how the employee believes he or she contracted COVID-19;
   2. Discuss the employee’s work and out-of-work activities that may have led to the COVID-19 illness (while respecting the privacy of the employee); and
   3. Review the employee’s work environment for potential exposure risks

If, after a reasonable investigation, an employer is unable to determine whether it is more likely than not that the exposure to COVID-19 was work-related, the case does not need to be recorded.

As economies reopen, employers are preparing to bring employees back into the workplace.  Workplace safety will be paramount, but employers also need to make sure they are properly recording work-related illnesses and injuries.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.