In 2009, the EEOC published guidelines for employers to handle the H1N1 virus in the workplace. On March 19, 2020 they re-issued the document with COVID-19 specific guidelines. As the U.S. continues to respond to the growing number of coronavirus cases, what is the obligation of employers to report confirmed cases? Until now, only health care facilities were mandated to report infectious diseases. If you are an employer, please consider your limited duty under OSHA and ADA guidelines to ensure a safe workplace environment and help contain the coronavirus (COVID-19).
ADA guidelines for employer reports of confirmed coronavirus cases:
The Americans with Disabilities Act applies to employers with 15 or more employees, and protects employees and applicants from discrimination.
Under ADA, employers are restricted in their ability to ask employees personal medical questions. However, in cases where an employee is a direct threat to others, there are exceptions. Employers under this direct threat exception can take steps into inquiring about those infected and their potential spread to other employees.
If an employee is confirmed to have COVID-19 infection, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the ADA, not disclosing an individual’s identity or any medical information.
Similarly, an employer cannot disclose any information that would lead others to uncover the identity of infected employee.
OSHA guidelines for employers reports of confirmed coronavirus cases:
OSHA recordkeeping requirements mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.
Employers are responsible for recording and reporting cases of COVID-19 to OSHA if:
- The case is a confirmed case 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, days away from work).
OSHA has stated COVID-19 is a recordable illness if a worker is infected on the job. This alone is hard to verify because the virus is so widespread. If an employee becomes infected while traveling for work or at work, the employer would be required to prepare and file appropriate reports with OSHA.
The illness is not recordable if a worker was exposed to the virus while off the clock.
Under OSHA’s Section 5(a)(1) Duty Clause, employers must take reasonable steps to provide a hazard-free workplace. Now, more than ever, employers should be keeping their workplaces clean, with adequate access to handwashing and sanitizing, and space for social distancing. Employers could be held liable if an employee contracts coronavirus at their workplace because it did not meet these standards.
Additionally, employees have a duty to comply with rules, regulations, and orders to help maintain a hazard-free workplace.
What about the CDC?
There is no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The health care provider that receives the confirmation of a positive test result is a mandatory reporter who will handle that responsibility.
Attorney Kara Beck is a commercial litigator with Gross McGinley Attorney at Law in Allentown, representing companies of all sizes in lawsuits concerning privacy, contract matters, employment disputes, and other legal actions.