The coronavirus (COVID-19) pandemic has created massive change and concern for employers and employees across the world. Even as businesses reopen and employees return to their new normal, the risk of becoming exposed to and ill with COVID-19 is still present. When an employee reports they have COVID-19, employers are faced with the difficult task of determining whether the employee's illness is work-related. This HR Insights piece will provide an overview of how employers can determine when a COVID-19 case is work-related, OSHA requirements for reporting illness and best practices for responding to an employee's positive COVID-19 test. As is the case with all inherently legal issues, employers are strongly recommended to seek the guidance of legal counsel when faced with any of the claims discussed herein. This article should not be considered legal advice.

OSHA Requirements

The Occupational Safety and Health Act (the Act) requires employers to report and record work-related injuries and illnesses. OSHA has indicated that COVID-19 infections are recordable injuries if they are work-related and they meet the Act's recording criteria. Recording requirements apply only to employers with more than 10 employees who are not in an exempt, low-risk industry.

In addition, employers must report incidents that result in an employee's fatality within eight hours. Incidents that result in inpatient hospitalization, amputation or loss of an eye must be reported within 24 hours.

OSHA Guidance on Work-relatedness

An injury or illness is work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness. Work-relatedness is presumed for events or exposures in the work environment.


Case-by-Case Evaluation

Unfortunately, because the coronavirus is so widespread, determining whether an employee's illness is work-related can be difficult and should be evaluated on a case-by-case basis. Employers can conduct the following activities when an employee reports a positive COVID-19 diagnosis:

  • Ask how the employee believes they were exposed to the coronavirus.

  • Ask employees about their work-related activities.

  • Ask employees about their out-of-work activities, while being sure to respect their privacy.

  • Conduct a review of the employee's work environment to identify potential COVID-19 exposure.

  • Review whether the employee's co-workers have reported a COVID-19 diagnosis or symptoms.


After conducting a review, employers will hopefully have enough information to determine whether a COVID-19 case is work-related. Employers should consider that certain situations, including the following, make it more likely for a COVID-19 case to be work-related:

  • The employee is frequently and regularly exposed to the public.

  • There are other employees who have tested positive for COVID-19.

  • The employee works closely or has regular contact with someone who has tested positive for COVID-19.

Employers should consult legal counsel when evaluating whether an employee's COVID-19 case is work-related to ensure compliance with all applicable federal, state and local laws.

Recording a Work-related COVID-19 Case

OSHA has clarified that COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

  • The case is a confirmed case of COVID-19 (see Centers for Disease Control and Prevention (CDC) information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);

  • The case is work-related, as defined by 29 CFR 1904.5; and

  • The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first aid or days away from work).

OSHA's definition of a recordable illness includes "both acute and chronic illnesses, such as, but not limited to, a skin disease, respiratory disorder or poisoning." This definition is limited to abnormal conditions or disorders that exclude the common cold and the seasonal flu. This can make it difficult when employees show up to work with coronavirus-like symptoms, such as a high fever or coughing. For this reason, employers may hold off until they have a confirmed COVID-19 diagnosis before starting a recordability analysis. A confirmed case of COVID-19 means an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19.

Reporting a Work-related COVID-19 Case

COVID-19 cases must be reported if they are work-related and result in a fatality (within eight hours), inpatient hospitalization, amputation or loss of an eye (within 24 hours). The reporting periods begin as soon as the employer learns about the work-related incident, even if there is a delay between the time the incident takes place and the time the incident is reported to the employer.

If the OSHA area office is closed, employers are expected to report these incidents by phone at 1-800-321-OSHA (6742) or the reporting application located on OSHA's public website at www.osha.gov.

Record keeping Requirements

Employers with more than 10 employees and whose establishments are not classified as a partially exempt industry must prepare and maintain records of serious occupational injuries and illnesses, using OSHA Forms 300, 300A and 301.

  • Form 300 (Log of Work-Related Injuries and Illnesses): Use to classify work-related injuries and illnesses and to note the extent and severity of each case. When an incident occurs, employers must use Form 300 to record specific details about what happened and how it happened.

  • Form 300A (Summary of Work-Related Injuries and Illnesses): Shows the total number of work-related injuries and illnesses for the year in each category. At the end of the year, employers must post the Form 300A in a visible location so that employees are aware of the injuries and illnesses occurring in their workplace. Employers must keep a log for each establishment or site. When an employer has more than one establishment, a separate log and summary must be kept at each physical location that is expected to be in operation for one year or longer.

  • Form 301 (Injury and Illness Incident Report): Must be filled out within seven calendar days after an employer receives information that a recordable work-related injury or illness occurred. This report includes information about the employee and the treating physician, and detailed information about the case. Employers must keep this report on file for five years following the year it pertains to.

The information collected in these records enables OSHA to determine DART rates for employers and industries. DART stands for "days away, restricted and transferred" and is a safety metric that helps determine how many workplace injuries and illnesses caused employees to miss work, perform restricted work or be transferred to another job within a calendar year. OSHA uses data from a three-year sampling period to update the list of partially exempt industries. Industries with a DART rate lower than 75% of the average DART for the sampling period are allowed a partial exemption from recording requirements.

Following these reporting requirements is essential to protecting your organization from potential litigation and OSHA violations. These recordkeeping violations can quickly add up, with first-time violations ranging between $1,000 to $5,000 and willful violations carrying a penalty of $134,937 per violation.

Best Practices for Responding to a COVID-19 Test

When an employee notifies you that he or she is sick with COVID-19, you should respond calmly and empathetically. In these uncertain times, it can be easy to overreact, but you need to ensure that the infected employee is treated with compassion. Reassure the employee that their identity will remain confidential, and be sure to help them coordinate taking leave or paid time off until they've recovered.

Without disclosing the identity of the infected employee, directly notify any co-workers or customers with whom the ill employee had been in contact. Be sure to remain calm and let them know that someone they have been in contact with or have been in their physical work area has tested positive for COVID-19. Recommend that they should self-quarantine for the next 14 days and monitor themselves for the symptoms of COVID-19. If feasible, allow eligible employees to work from home during this time.

Be sure to notify the rest of the company by email or letter that an employee has tested positive for COVID-19. Remember to keep the employee's identity protected and be transparent about your response. The communication should include what steps your company will be taking to protect the health of other employees. If you plan on having employees work from home for the next 14 days or closing the office, this information should be disclosed in the communication.

According to the CDC, COVID-19 can remain on hard surfaces for up to 12 hours, creating a potential risk of transmission. Depending on the size of your organization, you may want to consider closing the office for a few days so that it can be thoroughly cleaned and disinfected. All surfaces that the infected employee may have touched should be disinfected, as well as other high-touch surfaces, which include countertops, cabinets, doorknobs, handles and chairs.

Summary

The COVID-19 pandemic is widespread across the country, and it's likely that employers may be faced with the difficult situation of responding to an employee's positive diagnosis and determining whether their illness is work-related. Before making any decisions, employers should consult legal counsel to ensure compliance with all applicable laws.

For additional resources on the COVID-19 pandemic, contact ERM Insurance Brokers today.

This HR Insights is not intended to be exhaustive nor should any discussion or opinions be construed as professional advice. © 2020 Zywave, Inc. All rights reserved.


• On Dec. 12, 2020, the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC) recommended use of Pfizer Inc.’s COVID-19 vaccine for individuals 16 years of age and older.

• The Food and Drug Administration (FDA) approved the vaccine one day earlier.


The ACIP recommendation triggers the requirement for non-grandfathered group health plans and health insurance issuers to cover the vaccine without cost sharing. Grandfathered plans may choose to cover the vaccine, and could be required to do so under state law or applicable insurance policies.


Coverage of COVID-19 Preventive Care Services

Non-grandfathered group health plans, and health insurance issuers offering group or individual health insurance coverage, must cover coronavirus preventive services, including recommended COVID–19 immunizations, without cost sharing. During the COVID-19 public health emergency, covered services may be provided by in-network or out-of-network providers. Coverage of these immunizations must be provided, even if not listed for routine use on the CDC’s Immunization Schedules. Plans and issuers subject to Section 2713 of the Public Health Service Act must also cover, without cost sharing, items and services that are integral to the furnishing of recommended preventive services, including immunization administration.


Coverage Effective Date

Under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), plans and issuers must cover the vaccine within 15 business days. It is widely understood that coverage of the COVID-19 vaccine must begin no later than Jan. 1, 2021. Plans and carriers may choose to cover the vaccine before this date. As additional forms of the vaccine are approved by the FDA and recommended by ACIP, they will be required to be covered as well.




  • Before traveling, get a viral test one to three days before the trip. Do not travel if you’re still waiting for test results, test positive or are sick. Follow all destination entry requirements and provide requested health information.

  • During travel, wear a mask, stay at least 6 feet away from other people, and wash your hands often or use an alcohol-based hand sanitizer. Always watch for signs of illness.

  • Before traveling back, get a viral test one to three days before your scheduled departure. Follow all destination and airline requirements.

  • After traveling, get a viral test three to five days after travel, and stay home for seven days. If you’re not getting tested for the coronavirus, stay home for 14 days and continue to monitor your health.

For those who are considering travel, there are additional restrictions to keep in mind. People who get sick with COVID-19 or test positive while abroad might not be permitted to return to the United States until isolation has ended. Additionally, those who are exposed to COVID-19 during travel might be quarantined and not permitted to return to the United States until 14 days after the last exposure.

What’s Next?

Travel may increase a person’s chance of getting and spreading COVID-19. Health experts are still warning against all nonessential travel—especially during the holidays—as they worry a surge in travel could create a surge in COVID-19 cases. Staying home is the best way to protect yourself and others from the coronavirus.

Are you or an employee planning on traveling to Mexico? Read the following:


CDC Warns Americans Not to Travel to Mexico

The Centers for Disease Control and Prevention (CDC) is urging Americans to avoid all travel to Mexico. This warning comes as coronavirus cases continue to rise in the country and after the CDC assigned Mexico its highest-level advisory. The CDC’s written advisory said people may increase their chances of getting and spreading COVID-19 by traveling there.

American travel to Mexico has increased over the past few months since airlines have added flights. Mexico is currently the top international destination for American travelers. Specifically, Cancun, San Jose del Cabo and Puerto Vallarta are the most popular U.S. tourist destinations—and all three destinations are experiencing high rates of COVID-19 cases.

COVID-19 in Mexico

Over the past two weeks, Mexico surpassed 100,000 deaths due to COVID-19 and reported more than 1 million cases since the beginning of the pandemic. Furthermore, Mexico has the fourth-highest death toll in the world. COVID-19 testing isn't widespread in Mexico, so health officials have said the numbers of cases and deaths could be higher than reported.

Unlike other warm-weather destinations like Hawaii and the Caribbean, Mexico does not require travelers to present negative COVID-19 test results to enter the country. Additionally, much of the country has reopened to visitors.

© 2020 Zywave, Inc. All rights reserved.

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