KemLaw

Every Connecticut employer with more than ten employees and which is not in a designated “low-hazard industry” is now required to determine whether any employee with COVID-19 contracted the virus at work.  This requirement revises earlier advice from the Occupational Safety and Health Administration (OSHA), and remains subject to further change as the pandemic continues to evolve.

The new guidance states that if an employer finds that an employee did, in fact, contract the illness while at work or while performing work-related duties, an employer must report the incident on an OSHA Form 300.   This new requirement is a change from OSHA guidance issued on April 10^th and previously reported by Kainen, Escalera & McHale.  In that earlier guidance, only health care, emergency response, and correctional institution employers were required to investigate workplace infections.

Connecticut employers with ten or fewer employees and certain employers in “low-hazard industries” still have no COVID-19 recording obligations beyond the reporting of work-related coronavirus illnesses that result in death, in-patient hospitalization, amputation, or the loss of an eye. To determine whether an employer is classified in a “low-hazard industry”, review the following link:  https://www.osha.gov/lawsregs/regulations/standardnumber/1904/1904SubpartBAppA.

Specific Reporting Requirements

Employers must file a Form 300 if the following conditions are all met:

• A confirmed case of COVID-19 is discovered.
• The illness appears to be work-related.
• The infection results in death, days away from work, restricted work, or the transfer to another job, medical treatment beyond first aid, or the loss of consciousness

Was the infection work-related?

The rule here is straightforward.  If you have an employee who tests positive for the virus, you must make a good faith effort to sort out whether the illness was contracted on the job.

That “good effort” should include asking the employee how they got infected, inquiring about their various work and non-work activities, and investigating whether it is possible that the infection could have occurred at work.

Because of the difficulty with determining work-relatedness, OSHA is exercising enforcement discretion to assess employers’ efforts in making work-related determinations.  Therefore, in determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, OSHA has advised its enforcement officers to review  certain types of evidence which may weigh in favor of or against work-relatedness. For instance:

• 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.

OSHA’s latest guidance further provide that if, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.  Rather, OSHA emphasizes that in all events, it is important as a matter of worker health and safety, as well as public health, for an employer to examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.

It is also vital that employers avoid probing too deeply into an employee’s non-work activities and medical history.  Accordingly, it is important to avoid asking directly whether an employee’s  family member might also have COVID-19.  Let the employee volunteer that information only.

Finally, if an initial investigation turns up no work connection to the illness, but later information contradicts the original finding, the Form 300 should be updated.

If you’re an employer and have questions about labor and employment law, including the proper handling of COVID-19 issues, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut.  We are available during this pandemic to help any employer who would like our help.

Remember – we do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region.  What’s more, each of our attorneys has over 25 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy.  Please contact us if we can help you.

The information provided above is made available by Kainen, Escalera & McHale, P.C. for educational purposes only.  It is not intended to provide specific legal advice to your individual circumstances or legal questions. You acknowledge that neither your reading of, nor posting on, this site establishes an attorney-client relationship between you and our law firm, or any of our attorneys. This information should not be used as a substitute for seeking competent legal advice from a licensed professional attorney in your state nor is it provided for the specific purpose of soliciting your business on any particular matter. Readers of this information should not act upon anything communicated in it without seeking professional counsel.