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Employers Must Track Coronavirus Infections in the Workplace

March 10, 2020, 7:34 PM

Employers dealing with coronavirus worries can add another concern—federal workplace safety regulators expect them to track infections or risk being fined.

The Occupational Safety and Health Administration issued the guidance in early March, equating Covid-19, the illness caused by the new coronavirus, to other infectious diseases such as tuberculosis and hepatitis A.

The tracking requirement could pose a problem for employers who will have to determine if a worker was stricken by Covid-19—not the flu or a cold—and whether the worker was infected while on the job. There are many types of coronaviruses, including some that cause the common cold.

“It’s a tough one,” said Robert G. Lian, a partner at Akin Gump LLP in Washington.

OSHA requires hundreds of thousands of employers with 10 more workers to keep a log of every workplace injury or illness that requires medical treatment beyond first aid or keeps a worker away from work for at least one day. Failure to keep accurate records can lead to the agency citing the company and possibly proposing fines with the amount varying based on the number of unreported cases and why the incidents weren’t listed.

For cases of employees with a cold or the flu missing work, OSHA doesn’t require the employer to track those illnesses because it’s impossible to determine where or when the worker contracted the virus, Lian said.

However, OSHA is requiring employers to track cases of Covid-19.

Attorneys David Klass and Travis Vance, partners at Fisher Phillips LLP in Charlotte, N.C., said if an employer doesn’t know whether the illness occurred at work, OSHA rules say the employer must evaluate the employee’s work duties and environment to decide whether exposures at work either caused or contributed to the illness.

Baruch Fellner, a partner at Gibson, Dunn & Crutcher LLP in Washington, said because of the difficulty of knowing for certain that the virus was contracted at work, it will be hard for OSHA to make a case for issuing citations.

Instead of OSHA going through employers’ records looking for potential violations, Fellner said, for recordkeeping purposes the agency should treat Covid-19 the same way it handles colds and the flu, by not mandating records.

OSHA didn’t respond to a request to discuss recordkeeping requirements.

Sniffles Not Recordable

Lian said that for workers who decide not come to work because they have sniffles or are coughing, that by itself won’t require employers to list the cases. That’s a longtime practice and covered by OSHA’s flu and cold exemption.

If a test later shows a worker who stayed home had Covid-19, the employer would need to consider if the infection was work-related and recordable, Lian said.

OSHA doesn’t have a specific rule mandating what precautions employers need to take to protect workers from Covid-19 or other airborne diseases. Instead the agency expects employers to follow the “general duty clause” of the Occupational Safety and Health Act, which says workplaces must be free of known hazards that can be corrected.

House Democrats have urged the Department of Labor and OSHA to enact an emergency rule to prevent coronavirus exposure. And, Democrats introduced a bill (H.R. 6139) Tuesday requiring OSHA to issue an emergency standard covering only health-care facilities.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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