On May 19, 2020 OSHA issued new guidance that requires that where employers know of an employee with a confirmed case of COVID19, they must undertake a reasonable, good faith investigation to determine whether the illness is “work related.” If, upon the conclusion of such investigation, the employer determines in good faith that it is more likely than not that the illness is the result of a work-related exposure, then the illness is deemed to be “recordable” [ie must be recorded by the employer in its annual Form 300] under OSHA. For covered employers, the work-related exposure because “reportable” [ie must be reported to OSHA] if it results in fatality within 30 days of the exposure, or in-patient hospitalization within 24 hours of the exposure. (This, clearly, presents issues concerning COVID because the latency period for the disease is far more than 24 hours, and any fatalities are going to be right around that 30 day mark). Attorneys and employers should note the distinction between recordable and reportable, and know that just because something is recorded or even reported, it is not conclusive that an OSHA violation has occurred.
 
The OSHA guidance establishes that an employer must “record” cases of COVID19 if:
 
  1. The case is confirmed as defined by CDC;
  2. The case is work-related as defined by 29 CFR 1904.5[3]; and
  3. The case involves one or more of the general recording criteria set forth at 29 CFR 1907.7[4].
 
The May 19 Enforcement Guidance concerns A 2-prong test to determine is a case is work related. Rather than summarizing the text, reading the actual guidance is best:
 
“In determining whether an employer has complied with this obligation and made a reasonable determination of work-relatedness, CSHOs [OSHA compliance officers] should apply the following considerations:

  • The reasonableness of the employer's investigation into work-relatedness. Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee's COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee's work environment for potential SARS-CoV-2 exposure. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.
  • The evidence available to the employer. The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee's COVID-19 illness, then that information should be taken into account as well in determining whether an employer made a reasonable work-relatedness determination.
  • The evidence that a COVID-19 illness was contracted at work. CSHOs should take into account all reasonably available evidence, in the manner described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:

  • COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
  • An employee's COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • An employee's COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
  • An employee's COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • An employee's COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
  • CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.

If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness . In all events, it is important as a matter of worker health and safety, as well as public health, for an employer to examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.”
 
This process clearly impacts workers' compensation because if the employer concludes in the OSHA context that the illness is work-related, does this trigger an obligation on the workers' compensation end to file a First Report of Injury? Our conclusion based on reviewing the guidance was that if the employer concludes by the preponderance standard that the case is “recordable” this would be at a minimum an indication that a First Report of Injury should be filed as well.
 
At the same time, as the OSHA guidance from the Federal Register provides:
 
“[t]he issue of confusion between OSHA recordkeeping and workers' compensation/insurance requirements cannot be totally eliminated as the workers' compensation criteria vary somewhat from state to state. There will always be some differences between OSHA recordability and compensable injuries and illnesses." OSHA recordability does not equate to compensation eligibility .

Although employers should note and file OSHA-required records such as the OSHA Form 300/300A , filing a First Report of Injury in a workers' compensation case does not constitute an admission that the workers' compensation case is compensable.
The new guidance covers virtually every employer with 10 or more employees and there is no sunset to this new policy:
 
“ Accordingly, until further notice, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee COVID-19 illnesses for all employers according to the guidelines...”




MASSACHUSETTS
DEPARTMENT OF INDUSTRIAL ACCIDENTS
*ALERT*


Effective July 1, 2020, the DIA will no longer accept either Forms 105 (Agreement to Extend 180 Day Payment-Without-Prejudice)  or Forms 113 (Agreement to Pay Compensation) via US Mail. These forms can only be submitted via email commencing July 1, 2020.


All Forms 105 must be emailed to:



All Forms 113 must be emailed to:



Please include the DIA board number in the upper right corner of these forms before submitting.

Forms 105 or Forms 113 not submitted via email will neither be reviewed nor considered for approval.

A full copy of the alert can be found here .






CONNECTICUT
WORKERS' COMPENSATION COMMISSION
*MANDATE*


The Connecticut WCC issued an order that if COVID-19 testing is required as part of routine pre-operative physicals for an authorized surgery, then that testing should be covered and reimbursed by the workers' compensation carrier.

The update did not address testing for simple office visits, physical therapy, etc. It was simply limited to pre-op testing. 



WE ARE FULLY PREPARED TO REVIEW
OR DISCUSS ANY ISSUES INVOLVING
WORKERS' COMPENSATION
DURING THIS CRISIS.

FEEL FREE TO CONTACT US VIA
TELEPHONE, CELL PHONE OR EMAIL.


TKCK is a workers' compensation and civil litigation firm handling cases in the all six New England States (Massachusetts, Connecticut, Rhode Island, New Hampshire, Maine and Vermont) and at the Federal level for Longshore Harbor Workers’ Compensation Act and Defense Base Act claims.

We are approved panel counsel for most major insurers, including AIG, ACE/Chubb, Travelers, Liberty Mutual, Zurich, PMA, Utica, XL Specialty, Starr, The Hartford, CNA, Berkley, Acadia and others. We have longstanding partnerships with most major Third Party Administrators and Self-Insured Groups and we are designated counsel for many of the largest employers in New England.


Experience Matters. Results Count.


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