COVID-19 and the Workplace
Required disclosures and notifications of COVID-19 exposures and infections
By Patricia Brum
A recent California study has revealed the construction industry has the highest COVID-19 positivity rate of all industries. Yet, a year into the pandemic, many construction-related businesses are still unaware of their reporting obligations or how to otherwise handle a worker’s COVID-19 positive test or potential exposure.
There is no centralized law regulating the disclosure and notification of COVID-19 cases in the workplace. Instead, to determine their obligations, businesses must piece together regulations issued at federal, state and local levels, and strike a careful balance between maintaining workplace safety and protecting employee privacy.
Overall, reporting obligations can be divided into three broad categories: 1) disclosures to OSHA (federal level); 2) disclosures at the state level; and 3) disclosures in the workplace.
1. Disclosures to OSHA
At the federal level, COVID-19 record keeping and reporting obligations are established by OSHA. However, OSHA does not require all cases of COVID-19 to be reported. In practice, the duty to report COVID-19 cases to OSHA will only be triggered in rare circumstances.
Whether an employer needs to report COVID-19 cases to OSHA is primarily based on the answer to three questions.
a. Is the COVID-19 case work-related?
Only work-related COVID-19 cases must be documented and reported to OSHA. But, how do employers know if a COVID-19 case is work-related?
In the construction industry, a COVID-19 case is work-related if: i) there is evidence of other COVID-19 cases among workers who work closely together and there is no alternative explanation for the infection’s source; or ii) the employer has evidence (either through the employee or other sources) indicating the infection may have taken place at work.
If the employer determines that the COVID-19 case is not work-related, no disclosure or record keeping is necessary. However, if it concludes that the COVID-19 case is work-related, the employer must anwers two questions to determine if the case should be reported to OSHA.
b. Did the COVID-19 work-related case result in hospitalization?
Not all work-related COVID-19 cases resulting in hospitalizations need to be reported to OSHA. To be reportable, it must be an in-patient hospitalization (for treatment) and must have occurred within 24 hours of the employee’s exposure to COVID-19 in the workplace.
Employers have 24 hours to report the case to OSHA. The reporting clock starts when the employer “know[s] both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19.”
In other words, if the work-related COVID-19 case did not result in hospitalization, or if the in-patient hospitalization did not occur within 24 hours of the exposure in the workplace, then the employer does not need to report the case to OSHA.
c. Did the COVID-19 work-related case result in fatality?
OSHA also requires employers to report COVID-19 fatalities, but only if the death occurred within 30 days of the employee’s work-related exposure. In those instances, the employer has eight hours to report the fatality to OSHA. The reporting clock starts when the employer “know[s] both that the employee has died, and that the cause of death was a work-related case of COVID-19.”
In sum, OSHA’s guidance provides simple reporting rules that are only triggered in rare cases. However, employers should bear in mind that the states and cities in which they operate may have stricter COVID-19 reporting requirements than those set forth by OSHA.
2. Disclosures at the State Level
In addition to the OSHA rules described above, there are currently 28 OSHA-approved COVID-19 workplace safety and health programs operated by individual states and U.S. Territories, each with its own rules. These rules in some cases (for example Cal-OSHA) expand the reporting obligations described above.
States are also enacting their own laws relating to notice and reporting obligations for COVID-19 workplace exposures. Because California has the most comprehensive reporting obligations of all states, this article will use its recently enacted law as an illustrative example.
A Case Study: California AB 685
On September 17, 2020, the California governor signed Assembly Bill (“AB”) 685 into law. This new legislation, which went into effect on January 1, 2021, imposes strict notice requirements relating to COVID-19 work-related exposures on employers.
In particular, AB 685 requires California employers to notify employees, employees of subcontractors at the work site and union representatives, if applicable, whenever the employer receives a “notice of potential exposure” to a “qualifying individual” at the work site. The new law also requires employers to notify the local public health agency of a COVID-19 outbreak in the workplace.
a. Notice to Employees and Their Representatives
Within one business day of learning of a “potential exposure” to a COVID-19 case in the workplace, California employers are required to:
- Provide written notice to all employees and employers of subcontracted employees who were at the work site within the infectious period who may have been exposed to COVID-19;
- Provide written notice to employee representatives, including unions and sometimes attorneys, who may represent employees;
- Provide written notice to employees and/or employee representatives regarding COVID-19-related benefits that employee(s) may receive, including workers’ compensation benefits, COVID-19 leave, paid sick leave, and the company’s anti-discrimination, anti-harassment, and anti-retaliation policies; and
- Provide notice to employees regarding the company’s disinfection protocols and safety plan to eliminate any further exposures, per CDC guidelines.
Written notice includes personal service, postings, e-mail or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
b. Notice to Local Public Health Agency
In addition to providing notices to employees and their representatives, employers in California must provide notice to the local public health agency within 48 hours of learning of a “COVID-19 outbreak” in the workplace. Currently, a COVID-19 outbreak in the workplace occurs when at least three probable or confirmed COVID-19 cases are reported within a 14-day period in persons with close contact at work and from different households.
The notice to the local public health agency must include the names, numbers, occupations and work sites of the qualifying individuals. The employer must also include the business address and NAICS code of the work site where the qualifying individuals work. Finally, the employer must continue to give notice to the local public health agency of any subsequent cases.
3. Disclosures in the Workplace
There is no federal law that specifically mandates employers to notify their employees if someone has tested positive or if there has been a potential exposure in the workplace. However, states and local governmental agencies are beginning to impose those obligations on employers.
Irrespective of any state and local laws mandating disclosure, the Center for Disease Control and Prevention (CDC) encourages employers to notify not only their employees, but also contractors and on-site visitors of potential COVID-19 exposures in the workplace. As a result, employers are faced with the difficult task of crafting notices that comply with the CDC recommended practice and at the same time protect employees’ privacy.
Below are two basic principles that businesses should consider regarding COVID-19 disclosures in the workplace:
1. The employer should disclose to employees that a co-worker (or a visitor to the work site) has tested positive for COVID-19 without disclosing the identity of the person.
2. If known, the employer should also notify specific co-workers, clients, vendors or visitors that a person with whom they were in close contact in the work site over the past 14 days has tested positive. Again, employers should strongly consider not disclosing the identity of the person who has tested positive.
The lack of centralized regulations regarding the disclosure of COVID-19 exposures and infections in the workplace makes it difficult for businesses to determine their obligations when learning that an employee or visitor to the work site has tested positive.
Federal OSHA regulations provide the initial framework to determine whether a business has the duty to report the COVID-19 infection or exposure, but the inquiry doesn’t end there.
Businesses must also check potential rules and regulations enacted at the state and local level. At a minimum, businesses should consider notifying their employees that a co-worker has tested positive for COVID-19 without disclosing the identity of the person who tested positive.
About the Author
Patricia Brum is an attorney with Snell & Wilmer LLP, a full-service business law firm with more than 450 attorneys in 15 offices in the United States and Mexico. Before becoming a lawyer, Patricia worked in the surfaces industry for more than 15 years. She currently represents distributors, fabricators and installers in legal disputes in California. For more information, contact her at firstname.lastname@example.org.