In your role as an employer, we want to remind you that COVID-19 contracted in the workplace remains a reportable illness. The U.S. Occupational Health and Safety Administration (OSHA) guidance in March 2020 excepted COVID-19 from an exemption to report communicable diseases such as colds and flu for workers’ compensation purposes. Though OSHA briefly withheld enforcement of this guidance, in May 2020 the agency reinstated the requirement to investigate workplace outbreaks of the disease. OSHA’s guidance remains in effect.
Along with the requirement to report workplace cases under the Occupational Health and Safety Act’s general duty clause, the federal agency also issued recommended social distancing, personal protective equipment use, and disinfection procedures. Though this guidance was not in the form of an emergency temporary standard, OSHA began issuing fines to employers who failed to report and implement mitigation measures last fall. However, in California, Cal-OSHA did implement a COVID-19 emergency temporary standard last November. As we said in our January Trending Topics, that emergency temporary standard is a requirement for most workplaces, including charter schools regardless of size.
"While COVID-19 is reportable, cases may not always be compensable."
The revised federal enforcement policy requires employers to make reasonable efforts to investigate confirmed coronavirus cases in workplaces to determine if they were more likely than not to be occupationally-related. Additionally, OSHA instructed employers to ask workers about activities that may have led to their infections, inquire how workers believe they contracted the virus, and determine whether other workers may have been exposed.
While COVID-19 cases are now considered reportable illnesses, it does not always mean that cases will end up as compensable under workers’ compensation laws. Determining whether an illness is “out of and in the course of employment” can be difficult if there is a significant likelihood of contracting the illness outside the workplace. Investigating and recording a COVID-19 case that emerges in the workplace may document circumstances that could either support or rebut a presumption of an occupational cause.
Employers, including charter schools, should continue to follow both the federal and state guidance for worksite incidents of COVID-19. These measures are to protect the health and safety of your staff, to help you avoid enforcement actions, and to document the situation around any workplace outbreaks that may come into question for workers’ compensation.