Workers' Compensation: OSHA Steps Backwards on COVID-19 Occupational Exposures

On Friday, the Occupational Health and Safety Administration [OSHA] announced a policy minimizing occupational exposure to COVID-19 exposures and disease in the workplace. The policy contradicts the nationals patchwork of state Workers’ Compensation Acts that have statutorily included occupational exposure to infectious disease as a work-related and compensable illness.

The “guidance,” limits the reporting of COVID-19 illness except only for certain employees including: "workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions." Employers of all other types of workers are excluded from reporting, ie. grocery workers, teachers, taxi drivers, package delivery workers, maintenance workers, bus drivers, etc.

Additionally, in the limited group of workers, reporting is only required by OSHA if the following criteria are met:

“There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and

“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.

The action by OSHA is a major step backward for workers generally, and will make it more difficult for employees to obtain state workers’ compensation benefits.

See: Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (April 10, 2020).

Related information:

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