We’ve received many questions over the past few months from employers who wish to better understand potential liability for COVID-19 infections. While there has been talk of legislation which would provide some degree of protection to businesses, at present the exposure remains.
Under the Occupational Safety and Health (OSH) Act, an employer is obligated to “furnish to each of his employees 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 to his employees.” This “general duty” exists even where no specific standard or regulation addresses the hazard.
The Occupational Safety and Health Administration (OSHA) published basic guidance related to COVID-19 in a document titled “Guidance on Preparing Workplaces for COVID-19.” This document is general in nature and did not introduce any new standards or requirements. It is clear that OSHA considers COVID-19 to be a hazard, but the exact measures employers should take remain somewhat elusive.
On May 19th, OSHA issued a new enforcement memo effectively reversing previous guidance on how employers would record COVID-19 cases. Under the new memo, employers are now obligated to investigate confirmed COVID-19 cases to determine whether the exposure was work related and if applicable, to record COVID-19 pursuant to OSHA record keeping rules.
Employers with 10 or fewer employees and certain employers in low-hazard industries are generally not subject to OSHA record keeping, but they must report work-related illnesses or injuries that result in a fatality or an employee’s in-patient hospitalization, amputation or the loss of an eye. This reporting requirement would also apply to work-related COVID-19 illness. The new rule went into effect on May 26th.
While OSHA and workers’ comp are separate, they do often intersect. For covered workers, workers’ comp is typically the “sole remedy” for work related injuries and illnesses. Many employers are thus accustomed to managing work related injuries but have little if any experience with work related illness. If COVID-19 illness is determined to be work-related, it would likely qualify for coverage under workers’ comp.
The greatest challenge is of course determining whether COVID-19 illness is work related, since an employee could be exposed to the virus anywhere. Some states have addressed this challenge by passing legislation or enacting executive orders that presume COVID-19 infections amongst certain workers to be work-related. These laws typically include first responders and healthcare workers but may also include retail employees or other essential workers. California executive order N-62-20 presumes that anyone who works outside of their home contracted COVID-19 in the workplace and is therefore entitled to workers’ compensation benefits. In most cases an employer can attempt to rebut the presumption, but the burden of proof is on the employer to do so.
Even where no presumption applies, an employee could still assert that COVID-19 was contracted in the workplace and under the new OSHA guidance an employer would be obligated to investigate that possibility. The new OSHA guidance provides several examples of how an employer may make the determination:
- COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
- CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.
Once again, OSHA and workers’ comp rules are separate. Where COVID-19 is presumed under workers’ comp rules to be work related, the employee will likely qualify for workers’ compensation benefits, but this does not necessarily mean that the employer’s investigation for OSHA purposes would result in a recordable case. On the contrary, even where such a presumption does not exist, an employer who makes the determination that a COVID-19 case is work related for OSHA purposes, may face a challenge in denying workers’ compensation benefits.
In the event that COVID-19 is covered by workers’ compensation, an employee would typically be eligible for lost earnings and medical care on the same basis that a work-related injury would be covered. If the employee is permanently disabled, they may qualify for disability benefits and if they die from COVID-19 their family may be entitled to death benefits.
Workers’ comp premiums are based on job classifications. Premiums are lower for occupations where injuries are infrequent and higher where they occur often. COVID-19 could upend rating assumptions as workers with the greatest COVID-19 exposure aren’t typically in high risk occupations like construction, where claim expectations are high. Furthermore, since experience mod calculations take into account “actual claims” vs “expected claims,” hard hit businesses could see dramatic increases in their experience mod.
For now, employers need to monitor state workers’ compensation rules and prepare to investigate COVID-19 cases for OSHA purposes. In regard to liability, employers should be prepared to demonstrate good faith by carefully complying with CDC recommendations as well as state and local ordinances, all while protecting employee rights under the Americans with Disabilities Act and other applicable laws.
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