OSHA Compliant Contact Tracing may Inform WC Investigations and Evaluation of Compensability

Recently published guidance from OSHA has clarified that “employers should be taking action to determine whether employee COVID-19 illnesses are work-related” and thus recordable (if the employer is subject to recording requirements) or, if severe enough, reportable to OSHA.

It is important to understand that the rules relating to OSHA recordability and reportability are different from those that define an employer’s legal obligation to report a Texas workers’ compensation claim. Moreover, the work-relatedness standard that informs which illnesses an employer must record or report for OSHA is significantly different from the compensability standard that governs a Texas injury or occupational disease.

Some aspects of this guidance document, however, may help workers’ compensation carriers develop investigation protocols for workers’ compensation claims involving the disease, and the reasoning may be of some assistance to carriers in making compensability decisions under the Texas Act.

Under OSHA regulations, 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 a regulatory exception specifically applies.

OSHA has identified the following considerations which it’s Compliance Safety and Health Officers should apply when determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness:

    • The reasonableness of the employer’s investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness to:

(1) Ask the employee how he believes he contracted the COVID-19 illness;

(2) While respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and

(3) Review the employee’s work environment for potential SARS-CoV-2 exposure. This work-environment review should be informed by any other instances of workers in that environment contracting COVID-19 illness.

    • The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee’s COVID-19 illness, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.
    • The evidence that a COVID-19 illness was contracted at work. CSHOs should take into account all reasonably available evidence, in the manner described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance a COVID-19 case is likely to be work-related, for OSHA recording purposes when:
        • Several cases develop among workers who work closely together and there is no alternative explanation;
        • COVID-19 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; or
        • An employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

Conversely, a COVID-19 case is not likely to be work-related, for OSHA recording purposes when:

        • An employee 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; or
        • An employee, 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 has directed its CSHOs to 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.

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. 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.