On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
EMPLOYEES TESTING POSITIVE: WHAT NOW?
Employers have independent legal obligations to 1) record and 2) report outbreaks of COVID-19 (hereafter, “CV”) in the workplace.
Generally, California employers experiencing a CV-related fatality or illness, must record such events, as they would any other work-related fatality, injury or illness. To trigger the recording requirement, an illness must be work-related and result in any of the following:
2. A day’s absence from work;
3. Medical treatment that involves more than mere “first aid;”
4. A loss of consciousness; or
5. A diagnosis of significant injury or illness by a physician or other licensed healthcare professional.
A work-related CV case that satisfies one or more of the above criteria triggers an employer’s legal duty to record the case on the 300, 300A and 301 forms, or corresponding documents. It should be noted that the time an employee spends in quarantine, by itself, is not considered “days away from work” for recording purposes.
In order to be recordable, according to recent federal OSHA guidance, a CV case generally requires confirmation resulting from medical testing. However, due to a shortage of testing kits and related materials, not all workers later diagnosed with CV have been tested. As a result, a positive test result is not a prerequisite to triggering the CV recording obligation. Thus, cases that remain unconfirmed via testing may still require an employer to make a determination of recordability. Accordingly, a case would be recordable if it satisfies any one of the general criteria, enumerated above, such as an illness requiring a day’s absence from work. Cal-OSHA recommends that employers err on the side of caution, i.e., recordability.
For recordkeeping purposes, an illness is deemed work-related if an exposure in the workplace caused or contributed to the resulting condition, or significantly worsened a preexisting illness. An illness is presumed to be work-related if it results from exposures that occurred in the workplace. Examples of work-related exposures include interaction with those known to be infected with CV, working in the same area as people known to have been infected with CV, or sharing tools, material or vehicles with infected persons.
In cases where there is no known exposure that would trigger the presumption of work-relatedness, the employer must evaluate the employee’s duties and work environment for the purpose of determining the likelihood that the employee was exposed during the course of employment. This analysis requires employers to examine considerations such as:
1. The type, extent and duration of contact the employee had at work with other people, especially the general public;
2. Physical distancing and other controls that influence the likelihood of workplace exposure; and
3. Whether the employee had work-related contact with anyone who exhibited signs or symptoms of CV.
In addition to the above recording requirements, California employers are also required to report to Cal-OSHA any serious illness, serious injury or death of an employee that occurred at work or in connection with work. This must be done within eight hours of when the employer knew or should have known of the illness. This includes CV illness if it meets the definition of “serious illness.” A serious illness includes, without limitation, any illness that occurs in a place of employment or in connection with employment that requires inpatient hospitalization for other than medical observation or diagnostic testing.
In other words, if an employee becomes sick at work and is admitted as an in-patient at a hospital, regardless of duration, the illness is deemed to have occurred in the workplace. Consequently, the employer must report the illness to the nearest Cal-OSHA office. Reports must be made immediately, but not later than eight hours after the employer knows or through diligent inquiry should have known of the illness.
Significantly, if an employee becomes sick at work, it is immaterial if the illness is work-related. Employers must report all serious injuries, illnesses or deaths occurring at work, without making a determination about work-relatedness. However, reportable illnesses are not limited to those involving employees who became sick at work. The term “serious illnesses” includes illnesses contracted “in connection with any employment.” This includes, for example, those contracted in connection with work, but where symptoms manifest away from or outside of work. Employers should report any serious illness if there is cause to believe the illness may be work-related, regardless where symptoms first appeared.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over 38 years. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives. He has a remarkable record of success.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/
This newsletter is not intended as a substitute for legal advice and its content is provided for discussion purposes only. Any suggestions or recommendations must be assessed by competent legal counsel to be sure the unique requirements of each workplace are properly considered.