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As our daily lives and businesses are disrupted by the current health crisis, questions have arisen as to whether COVID-19 illnesses must be reported to the California Occupational Safety and Health Administration (“Cal-OSHA”). Generally, an employer must notify Cal-OSHA if: 1) there is a confirmed case of COVID-19, 2) COVID-19 caused serious injury or illness or death, and 3) said injury, illness, or death occurred at work.
Effective January 1, 2020, AB 1805, codified in Labor Code section 6302, amended the definition of serious injury or illness to align with Federal OSHA regulations. Now, a serious injury or illness includes all inpatient hospitalizations, regardless of the length of stay, unless the hospitalization is for medical observation or diagnostic testing. The previous requirement that inpatient hospitalizations last for more than 24 hours was removed. In other words, COVID-19 would qualify as serious if an employee requires any hospitalization other than for observation and for testing if the exposure to and contraction of the illness is work-related.
While most people who contract COVID-19 experience mild symptoms, a minority of people experience more severe symptoms, including difficulty breathing and even death. Practically speaking, an employer would have difficulty determining the severity of an employee’s symptoms if no medical treatment is sought, let alone being able to confirm an employee has COVID-19. Rather, an employee would likely have to test positive for COVID-19 and have symptoms severe enough to warrant hospitalization. Many medical facilities are not even testing for COVID-19 until the individual is hospitalized. Thus, an employee’s work-related COVID-19 contraction will not likely constitute a serious illness unless the employee requires hospitalization.
Most importantly, like any workers’ compensation injury, there has to be a causal relationship between the employment and the contraction of COVID-19. If an employer believes an employee contracted a serious illness from COVID-19 at the workplace, it must be reported to Cal-OSHA and recorded on Cal-OSHA Form 300. If the employer has no reason to believe a serious illness from COVID-19 is related to work, there is no reporting or recording requirement.
Presuming the illness qualifies as serious, what happens if an employer is unsure whether an employee contracted COVID-19 at work? Title 8, California Code of Regulation (“CCR”) section 14300.5 mandates if an employer is unsure whether the employee contracted COVID-19 in the workplace, the employer must evaluate the employee’s work duties and environment to decide whether or not industrial events or exposures caused this illness. In other words, the employer must conduct a reasonable investigation to determine if the employer’s duties or environment exposed the employee to COVID-19. In low-risk industries, this will likely be extremely difficult to prove.
There are relevant exemptions to what constitutes a work-related injury. Regulation section 14300.5 specifies exemptions to include if an employee’s symptoms surfaced at work but results from a non-work-related event. Notably, this section also exempts the common cold or flu from constituting a work-related injury. However, the regulation delineates that contagious diseases such as tuberculosis, brucellosis, hepatitis A, or the plague do not fall within this exemption. By comparison, COVID-19 appears more analogous to a contagious disease based on the potential for severity of illness and current epidemic. Simply put, unlike the common cold and flu, COVID-19 is not likely to qualify as an exempted work-related illness.
In circumstances where an employer is required to report COVID-19 to Cal-OSHA, the employer could be fined if the illness resulted from a workplace hazard. Title 8, CCR section 334 provides if there is a “realistic possibility” of death or serious physical harm resulting from a workplace actual hazard, there is a rebuttable presumption of a serious violation. This Regulation defines an actual hazard to include an unsafe or unhealthful work environment resulting from the employer’s practices, means, and processes adopted. If Cal-OSHA determines the illness as caused by an employer’s failure to take reasonable steps to create a safe work environment in light of COVID-19, Cal-OSHA could issue a serious violation or accident-related serious citation. An employer can rebut this presumption by demonstrating it did not know or could not have reasonably known the presence of the violation. For example, if an employee can establish she contracted COVID-19 from a co-worker and the employer took reasonable safety precautions, no serious violation will issue. Employers should refer to OSHA’s Guidance on Preparing Workplaces for COVID-19 for recommended steps an employer can take to create a safe work environment as a way to insulate itself from serious safety violations.
In short, low-risk employers may not have to report to Cal-OSHA instances of COVID-19 contractions by employees. COVID-19 would have to cause an employee to suffer serious symptoms resulting in hospitalization or death but even then, there will be difficulty in establishing a causal relationship between the employee’s work duties and contraction of COVID-19.