COVID-19 Positive: A Recordable Illness for Employers
OSHA COVID-19 Guidance for Employers
OSHA is already receiving complaints related to the Coronavirus Pandemic currently impacting our Nation. In fact, WJHL news out of Tennessee reported on April 8th that one Tennessee OSHA office had a total of 164 complaints related to COVID-19 in just one month. Most of the complaints included employers not enforcing the social distancing rules and recommendations, or insufficient respiratory protection equipment, but some complaints were much more extreme. One complaint even stated “When they check our temperature and someone has a high temperature they tell them to put their head under a fan to make the temperature go down for the time being.”
While the nation continues to struggle with the coronavirus pandemic that will hopefully be over soon, it is still important for employers to know the facts and what they need to do to maintain compliance. We will continue to update our customers as we become aware of any new developments.
COVID-19 is a Recordable Illness
As of April 10th, 2020, if someone contracts COVID-19 while working in your facility, it must be recorded according to the requirements of 29 CFR Part 1904. According to OSHA, employers are responsible for recording these cases if it falls into the following criteria:
There is a confirmed case of COVID-19 for an employee as defined by the Center for Disease Control. The CDC defines this as “an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19.” See www.cdc.gov/coronavirus/2019-ncov/php/reporting-pui.html
It is a work related case, as defined by 29 CFR § 1904.5, which states an employer must consider an injury or illness to be work-related if an exposure in the work environment is caused by the work environment which results in the condition, or the work environment aggravates the condition or aggravates a pre-existing condition. The exception to this rule is CFR § 1904.5(b)(2). See www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.5
The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7, which states that injury or illness is recordable if;
It results in a person not coming into work
Work is restricted
Medical treatment beyond first aid is necessary
The person becomes unconscious
It is a significant illness or injury as diagnosed by a physician
Check with your company’s Human Resources department for policies related to your organization, and refer inquiries regarding the recording of workplace COVID-19 illnesses directly to OSHA for guidance.
Employer’s Duty to Provide a Workspace Free of Hazards
It is the employer’s duty to protect workers from potential exposures. The General Duty Clause of The Occupational Safety & Health Act of 1970 requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Employers can be cited for violation of the General Duty Clause if a recognized serious hazard exists in their workplace and the employer does not take reasonable steps to prevent or abate the hazard. The General Duty Clause is used only where there is no other standard that applies to a particular hazard.
The following elements are necessary to prove a violation of the General Duty Clause:
1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
2. The hazard was recognized;
3. The hazard was causing or was likely to cause death or serious physical harm; and
4. There was a feasible and useful method to correct the hazard.
5. See https://www.osha.gov/laws-regs/standardinterpretations/2003-12-18-1
If an employee with COVID-19 comes to work and infects others, this could be a violation of the General Duty Clause and might lead to a violation if the hazard was recognized and not corrected. It is the company’s obligation to remove that person from the workspace (send them home immediately and don’t let them come back to work until they are well), quarantine their workspace, and have the building thoroughly disinfected.