2 minute read:
As states go through their re-opening processes in the midst of the COVID-19 pandemic, many employers have begun opening their offices and bringing their employees back to work. In addition to the normal challenges of opening their businesses up, employers need to make sure they are managing their own re-opening with a particular eye towards the safety of their workers and potential business liability.
On May 26, 2020 the Occupational Safety and Health Administration (OSHA) issued new guidance regarding employers’ obligation to record workers’ COVID-19 cases in their OSHA logs. A worker’s COVID-19 case is subject to the recording requirements if; (1) the worker tests positive for COVID-19, (2) exposure occurred in the work environment, and (3) the case meets other OSHA standards for recordability (ie. death, days away from work, restricted work, transfer to another job, medical treatment beyond first aid or loss of consciousness). The recording requirement does not apply to those employers who were previously exempt from OSHA recording requirements (ie. those with 10 employees or less), but, those employers are still required to report deaths or hospitalizations.
While it may be difficult for employers to determine if the exposure occurred at work, OSHA’s guidance stresses that an employer needs to make a “reasonable determination” regarding whether the exposure occurred in the work environment.
In addition to OSHA’s guidance, employers should make sure they are aware of how their individual state is treating COVID-19 exposure withing the context of their workers’ compensation regimes.
For example, Governor Newsom in California issued an executive order on May 6, 2020 that created a rebuttable presumption that a worker’s COVID-19 diagnosis was work-related for workers’ compensation purposes where: (1) the employee tested positive or was diagnosed with COVID-19 (with testing confirmation within 30 days of the diagnosis) within 14 days of performing any services at their employer’s place of employment, (2) the date when the services were performed was after March 19, 2020, (3) the place of employment was not the employee’s residence.
Finally, in addition to the regulatory requirements and potential workers’ compensation exposure, employers should be aware of the potential civil liability exposure. It is currently unclear how each state will treat cases that seek to go beyond the “exclusive remedy” framework of the state’s workers compensation laws. But, the likelihood is high that each state will have at least a handful of cases that test the boundaries of the workers’ compensation framework. Most states that allow employees to seek civil remedies beyond workers’ compensation require a showing of willful or egregious conduct on behalf of the employer. This makes it even more imperative that employers are following their state’s and/or county’s guidance on reopening in addition to the CDC’s recommendations.
We’re committed to helping companies reduce risk, avoid penalties, and achieve 100% ACA compliance. For questions about the ACA contact us here.