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EDUCATION CONNECTION
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OR THE FABRICATOR • FOR THE FABRICATOR • FOR THE FABRICATOR • FOR THE FABRICATOR • FOR THE FABRICATOR • FOR THE FABRICATOR • FOR THE FABRICATOR
COVID-19 and the Workplace
Required disclosures and notifications of COVID-19 exposures and infections 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.
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
There is no centralized law regulating the disclosure exposure to COVID-19 in the workplace. 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 workrelated?
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
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
keeping is necessary. However, if it concludes that
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
California employers are required to:
fatalities, but only if the death occurred within 30
exposure” to a COVID-19 case in the workplace,
days of the employee’s work-related exposure. In
■■ Provide written notice to all employees and
report the fatality to OSHA. The reporting clock
at the work site within the infectious period who
employee has died, and that the cause of death
■■ Provide written notice to employee
those instances, the employer has eight hours to
employers of subcontracted employees who were
starts when the employer “know[s] both that the
may have been exposed to COVID-19;
was a work-related case of COVID-19.”
representatives, including unions and sometimes
In sum, OSHA’s guidance provides simple reporting
attorneys, who may represent employees;
rules that are only triggered in rare cases. However,
■■ Provide written notice to employees and/or
and cities in which they operate may have stricter
related benefits that employee(s) may receive,
forth by OSHA.
COVID-19 leave, paid sick leave, and the
2. Disclosures at the State Level
and anti-retaliation policies; and
employers should bear in mind that the states
employee representatives regarding COVID-19-
COVID-19 reporting requirements than those set
including workers’ compensation benefits,
workplace safety and health programs operated by
case is not work-related, no disclosure or record
as an illustrative example.
OSHA also requires employers to report COVID-19
through the employee or other sources) indicating the If the employer determines that the COVID-19
states, this article will use its recently enacted law
Within one business day of learning of a “potential
In addition to the OSHA rules described above,
infection may have taken place at work.
most comprehensive reporting obligations of all
fatality?
there is no alternative explanation for the infection’s source; or ii) the employer has evidence (either
BY PATRICIA BRUM
there are currently 28 OSHA-approved COVID-19
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.
company’s anti-discrimination, anti-harassment, ■■ 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
the COVID-19 case is work-related, the employer
States are also enacting their own laws relating
one business day of sending and shall be in both
should be reported to OSHA.
workplace exposures. Because California has the
majority of the employees.
must anwers two questions to determine if the case to notice and reporting obligations for COVID-19 12 • Vol. 14 / Issue 1 • International Surface Fabricators Association
English and the language understood by the