As the number of COVID-19 cases in the United States continues to grow, an increasing number of employers are faced with the question: If someone in our workplace tests positive for COVID-19, does the company need to notify other employees, clients, public health officials, or other third parties? This article addresses the circumstances under which an employer may have a legal obligation to report COVID-19 cases, when such reporting may be advisable even in the absence of a legal duty, and best practices for reporting and other communications regarding COVID-19.
Mandatory Reporting to Local Health Departments
There is currently no federal law that imposes a legal obligation on employers to report cases of COVID-19 or other communicable diseases in the workplace to the Centers for Disease Control (CDC) or other federal or state agencies. Such mandatory reporting is typically addressed at the state and local levels, by state and municipal public health departments and agencies. State and local mandatory reporting laws vary, but many jurisdictions impose a legal duty to report such health concerns only on healthcare providers, laboratories, veterinarians, or other medical professionals.1 Depending on the applicable law and the circumstances, many employers are likely not covered as a "mandatory reporter" and therefore have no legal obligation to report a COVID-19 exposure to public health authorities.
Mandatory Reporting to OSHA
In certain circumstances, employers may have a duty to report COVID-19 or other communicable diseases contracted by employees to federal or state Occupational Safety and Health agencies. Under the Occupational Safety and Health Act of 1970, employers have a duty to report a disease or illness in the workplace if it is both recordable and reportable. To be "recordable," the employer generally must have an obligation to record the illness on an OSHA 300 log. Many white-collar businesses are exempt from maintaining an OSHA 300 log, unless the employer has been specifically directed otherwise by OSHA. In addition, the employer has a duty to report an illness only if it determines in good faith that the illness was contracted because of work exposure and the condition requires a work restriction, medical treatment, or absence.
Given the widespread transmission nonoccupationally, and the relatively lengthy incubation period of COVID-19, it may be difficult for employers to determine that an employee's illness was contracted because of a work exposure, rather than an exposure outside of the workplace. Even if the employer is able to make such a determination, to be reportable, the causal work exposure generally must result in death within 30 days of exposure, or hospitalization for treatment (as opposed to just observation) within 24 hours of exposure. Based on the information currently available about COVID-19, employee cases of COVID-19 that need to be reported to OSHA will likely be relatively rare. 2
Communications to Employees, Clients, and Other Third Parties
In certain circumstances, employers may have a legal duty under OSHA or common law to share limited details of a workplace exposure to a communicable disease with employees, clients, and other third parties. For example, if an employee is diagnosed with COVID-19, depending on the circumstances, an employer may have a duty to provide some notice to individuals who recently came into contact with the employee and to take other reasonable measures designed to prevent further transmission of the illness. Employers should take steps to ensure such communications avoid the disclosure of the employee's name or any other personally identifiable information. Generally, this information is not subject to HIPAA's privacy rule, but may be protected as confidential information under the Americans with Disabilities Act.
Even in the absence of any legal duty, some employers may nonetheless choose to voluntarily provide notice of a workplace exposure to COVID-19 or other communicable disease to employees, clients, or select third parties. Such notice may be necessary to prevent further transmission of the illness and, in certain circumstances, may be consistent with guidance from the CDC or local public health officials. However, employers must take care to comply with applicable federal, state, and local laws protecting employee privacy, particularly an employee's medical information. Employers should further take steps to prevent undue alarm or overreaction and, most importantly, retaliation against the exposed employee.
Venable's Labor and Employment Group will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates on Venable's COVID-19 Resources Page. For additional information regarding reporting obligations and other COVID-19 legal issues, please contact Jennifer Prozinski at JGProzinski@Venable.com, Thora Johnson at TAJohnson@Venable.com, Ronald Taylor at RWTaylor@Venable.com, Karel Mazanec at KMazanec@Venable.com, or any other Venable Labor and Employment Group attorney.
1 Some states also impose industry-specific reporting obligations, for example, requiring food establishments to report diseases or infections transmissible via food or drink.
2 In circumstances where an illness arises out of and occurs during the course of employment, employers may also have a duty to report the illness under applicable state or local workers' compensation laws and/or policies.