I’ve received a few questions from clients wondering if they are risking either OSHA violations or workers’ compensation claims if an employee contracts coronavirus and claims they got it from work. Although this would all be very case-by-case, for most employers the answer would be that the risk of these claims is very low.
OSHA has issued Guidance on Preparing Workplaces for COVID 19, a 35 page booklet (link below). This comprehensive report breaks down workplaces into 4 categories – Very High Risk, High Risk, Medium Risk and Low Risk. Outside of hospitals, EMS workers or similar medical settings, most employers will fall in the Medium to Low Risk categories. (Retail may be medium risk, an office setting low risk.) The Guidance then explains what type of personal protective equipment (PPE), engineering controls and administrative controls are recommended for each risk category.
As for workers’ comp, a coronavirus claim (if made) would be evaluated under the standards for occupational diseases. To get this type of claim allowed, an employee would have to prove the disease was: (1) contracted in the course of employment; (2) that it was peculiar to the employment; and (3) that the employment created a risk of contracting the disease in a greater degree and in a different manner than in the public generally. Needless to say, outside of a hospital environment this would be nearly, if not absolutely, impossible to prove.
Again, each case would have to be evaluated on a case-by-case basis, but for most employers the risk of OSHA or BWC claims is very low.
Recommended Action Steps for Employers:
Review the OSHA Guidance to determine what risk category your business falls in, and review the recommended “controls” and PPE that would apply to your workplace. Listen to, and address, employee concerns about coronavirus risks in the workplace – whether that risk comes from within the workplace (from other employees) or externally through clients, customers, or the general public. If you have any questions regarding coronavirus related employment issues, please contact Jennifer Corso. jcorso@ps-law.com, 216-381-3400.