OSHA and Workers' Comp FAQs
Under OSHA’s record-keeping requirements, COVID-19 is a recordable illness, and employers may be responsible for recording cases of COVID-19.
Some of the features included in the OSHA Incident Tracker are:
- Determining whether an illness or injury is recordable
- Accessing step-by-step guidance in filling out OSHA Form 300, OSHA Form 301 and OSHA Form 300A
- Identifying safety issues and tracking trends in your safety programs
- Accessing your OSHA 300 record-keeping information 24/7 - with nothing to install
- Always having the most up-to-date forms
In this article...
- What is OSHA?
- What is OSHA's record keeping requirement for COVID-19?
- If my company normally sends in reports annually to OSHA do I need to report COVID-19 cases?
- What is my Workplace Risk Level?
- Will OSHA be conducting onsite inspections?
- Can an employee file Workers' Compensation Claim for COVID-19?
- What steps should an employer take if an employee submits a Workers' Comp claim?
What is OSHA?
Occupational Safety and Health Administration
Employers are required to record work-related illnesses and injuries in OSHA 300 logs, which are made available to employees. Summaries or complete records, depending on company size, are submitted to OSHA every year. Employees are protected from retaliation for bringing forward information about illnesses or injuries.
What is OSHA's record keeping requirement for COVID-19?
New guidance as of April 10th from the Occupational Safety and Health Administration (OSHA) relieves employers of some responsibility for investigating and recording cases of COVID-19 among employees, but businesses still must record those that are obviously work-related.
Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if:
(1) the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC);[ 1]
(2) the case is work-related as defined by 29 CFR § 1904.5;[ 2] and
(3) the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.[ 3] On March 11, the World Health Organization (WHO) declared COVID-19 a global pandemic, and the extent of transmission is a rapidly evolving issue.
In areas where there is ongoing community transmission, employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. In light of those difficulties, OSHA is exercising its enforcement discretion in order to provide certainty to the regulated community.
If my company normally sends in reports annually to OSHA do I need to report COVID-19 cases?
Does Not Apply to Health Care, Emergency Response
Significantly, the new guidance does not apply to three sectors—health care, emergency response and correctional institutions. Those employers must continue to investigate all COVID-19 cases among employees and record all of those acquired at work.
In addition, employers are required to record cases whenever:
- There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among employees who work closely together without an alternative explanation.
- The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees' health and safety in the ordinary course of managing its business and employees.
What is my Workplace Risk Level?
The following guidance is provided to help identify risk levels in workplace settings for purposes of prioritizing OSHA enforcement activities during the Coronavirus Disease 2019 (COVID-19) pandemic. The workplace risk levels below are from the Occupational Risk Pyramid described in the OSHA publication, Guidance on Preparing Workplaces for COVID-19, OSHA publication 3990), www.osha.gov/Publications/OSHA3990.pdf.
- High and very high exposure risk jobs are those with high potential for exposure to known or suspected sources of SARS-CoV-2 that occurs during specific medical, postmortem, or laboratory procedures. Workplaces considered to have job duties with high risk of exposures to COVID-19 include, but are not limited to, hospitals treating suspected and/or confirmed COVID-19 patients, nursing homes, emergency medical centers, emergency response facilities, settings where home care or hospice care are provided, settings that handle human remains, biomedical laboratories, including clinical laboratories, and medical transport. Aerosol-generating procedures, in particular, present a very high risk of exposure to workers. The aerosol-generating procedures for which engineering controls, administrative controls, and personal protective equipment (PPE) are necessary include, but are not limited to, bronchoscopy, sputum induction, nebulizer therapy, endotracheal intubation and extubation, open suctioning of airways, cardiopulmonary resuscitation and autopsies.
- Medium exposure risk jobs include those with frequent and/or close contact with, i.e., within 6 feet of, people who may be (but are not known to be) infected with SARS-CoV-2. Workers in this risk group may have frequent contact with travelers returning from international locations with widespread COVID-19 transmission. In areas where there is ongoing community transmission, workers in this category, include, but are not limited to, those who have contact with the general public (e.g., in schools, high-population-density work environments, and some high-volume retail settings).
- Lower exposure risk jobs are those that do not require contact with people known to be, or suspected of being, infected with SARS-CoV-2, nor frequent close contact with, i.e., within 6 feet of, the general public. Workers in this category have minimal occupational contact with the public and other coworkers.
Will OSHA be conducting onsite inspections?
According to the agency, fatalities and imminent danger exposures related to the coronavirus will be prioritized for onsite inspections. OSHA also emphasized that workers requesting inspections, complaining of coronavirus exposure or reporting illnesses may be protected under one or more whistleblower statutes and will be informed of their protections from retaliation. The instructions take effect immediately.
Can an employee file a Workers' Compensation claim for COVID-19?
Workers' compensation statutes usually won't cover workers who contract coronavirus, except those few workers who get the virus as a natural consequence of their jobs (Health Care Workers and First Responders). There is no certainty that all health care providers and first responders will be able to obtain workers' compensation coverage. Workers who aren't in health care may have a more difficult time claiming workers' compensation. They will need to show that their jobs put them at greater risk of contracting the virus.
No matter job type, there still will have to be evidence of a work-related exposure for coverage under Workers' Comp.
For example, if someone got the coronavirus from a social visit to the grocery store, a theater, concert or religious gathering, workers' compensation would not cover it.
States differ considerably on their rules for compensation. While a few states apply the test of whether a disease arises out of and in the course of employment to determine if it is compensable, many states instead have a list of compensable diseases in their workers' compensation statute.
What steps should an employer take if an employee submits a Workers' Comp Claim?
- Educate the Team - Organizations should educate employees and supervisors on workers' compensation coverage and injury/illness reporting requirements.
- Report Incidents to Appropriate Parties - In accordance with the organization's policies and procedures, employees should be trained to report the incident to the company's designated representative The employer should take immediate action to ensure that the worksite where the incident occurred is safe and secure to prevent additional incidents.
- Complete Injury/Illness Reports - The report usually requires the following information: date of injury, the place where it occurred, a description of the injury or illness, the date the employer became aware of the injury or illness, the date that the employee received the form, the date the employee returned the form to the employer, and any other required information.
- File Injury/Illness Reports - Next the organization files the incident report with the company's workers' compensation carrier.
- Stay in Contact with the Worker's Compensation Carrier - Organizations must maintain contact with the workers' compensation carrier on the employee's claim. The employer may need to forward medical documentation to the workers' compensation carrier. Moreover, the workers' compensation carrier may have documents for the employer to complete. These documents may request information such as the number of lost workdays, the employee's return-to-work status and any salary continuation to determine wage replacement benefits.
- Stay in Contact with the Employee - The representative next informs the employee that the claim has been submitted and when to expect contact from the workers' compensation carrier regarding wage replacement and medical treatment. The representative should then establish a schedule of regular follow-up on the employee's progress by telephone, mail or e-mail to let the employee know that his or her well-being and return to work are important to the organization.
- Establish a Timeline for Return to Work - Establishing a timeline for the employee's return to work is imperative, as is making the determination about potential restrictions that may require accommodation and whether the employer will be able to accommodate the employee's needs. An employer may also need to consider if workers' compensation benefits will run concurrently with leave under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), state leave laws or a company-provided leave of absence. The employer should have a policy in place that includes how leave interacts with workers' compensation.
- Return the Employee to Work - Returning an employee back to work should be one of the main focuses for the employer, even if it is in a light duty capacity. The employer's policy should be a thoughtful, well-written document that can be administered with care, taking the employee's needs into consideration. Some workers' compensation carriers have resources to assist employers with their return-to-work programs.
- Continue Leave or Terminate When an Employee Is Unable to Return to Work - An employee's doctor may provide a fitness-for-duty document that states that the employee is not ready to return to work and may not be able to return for some time or not at all. In this case, the employer will have to look at whether the employee is eligible for additional leave under the FMLA, the ADA, state leave or leave under the company's policies and practices. Some state workers' compensation laws have anti-retaliation provisions that may preclude an employer from terminating an employee for being absent due to a work-related injury; other states have legal precedent limiting an employer's ability to terminate a worker receiving workers' compensation benefits. Beyond these laws, there may be no obligation to continue to employ the individual; however, as with any termination, employers should seek legal guidance specific to their circumstances.
Disclaimer: This information is provided as a self-help tool and does not constitute legal or financial advice. Laws, regulations and lending products are changing daily and decisions as to whether or how to use this information and/or what actions to take in response to the COVID19 Pandemic are solely those of the employer. The providers of this information disclaim any and all responsibility and liability for its accuracy, completeness or fitness for your particular business purposes.