OSHA guidance on COVID-19 reporting could make it harder to prove workers’ compensation claims

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Bloomberg Law reported that the federal Occupational Safety and Health Administration (OSHA) will not require non-medical and non-first responder employers to report possible COVID-19 exposures in the workplace.

OSHA’s decision on limiting reporting of potential work-related COVID-19 exposure could make it harder for workers to have COVID-19 exposure covered by state workers’ compensation laws. It will likely also make it more difficult to track exposure to the virus.

Injury reports and proving job-related exposure to COVID-19 through circumstantial evidence

Even if OSHA does not require most employers to report possible COVID-19 exposure, employers would still have to report possible COVID-19 exposures on the job to state workers’ compensation courts and agencies. However, many employers effectively use federal standards for recording an injury for reporting injuries to state workers’ compensation agencies. OSHA’s ruling may lead employers to under report possible COVID-19 exposures to state agencies.

In a blog post last week, Thomas Robinson wrote that many workers exposed to COVID-19 on the job will have to rely on circumstantial evidence to have COVID-19 exposures covered by workers’ compensation. But if employers aren’t required to log potential COVID-19 exposures, then it will be more difficult for employees to build their workers’ compensation cases with circumstantial evidence of other potential COVID-19 exposures in their workplace.

In theory employees could rely on state workers’ compensation reports to build a circumstantial case. But the lack of a federal reporting requirement may mean that employers don’t report potential COVID-19 exposure to state authorities.

Difficulties of tracking COVID-19 through medical records and billing

State workers’ compensation laws may provide another way to track the effect of COVID-19. Medical providers tend to ask about the cause of a medical condition or injury for the purposes of medical billing.  Knowing which COVID-19 cases were billed to workers’ compensation would be one way to track occupational exposure to the virus.

But there are problems with this approach. Doctors usually need to rely on patient history in order to determine whether an injury or illness is related to work. A worker may be unaware of how they contacted COVID-19.  Evidence that other workers were potentially exposed to COVID-19 may help doctors make that determination.

However, getting additional information to medical doctors and asking them to link an injury or illness to work duties is time consuming and often expensive. Sometimes a doctor will expressly conclude that an injury or illness was caused by work in their medical records. But with the advent of electronic medical records, it is less common to find causal statements in the body of a medical records. Unhelpful medical records will probably make it more difficult for workers’ compensation lawyers and public health authorities to investigate the causes of COViD-19 exposure.

COVID-19 and a two-tiered approach to workplace safety

I am disturbed by OSHA’s decision to limit reporting of COVID-19 by employers. The reason behind the decision is that many employers complained it’s difficult to determine if COVID-19 is caused by work. I agree that it will be difficult to cover COVID-19 cases under state workers’ compensation laws. But, filing an OSHA 300/301 report or a First Report of Injury in Nebraska isn’t an admission that an injury or illness is work-related.

Workplace safety advocates rightfully believe that this move by OSHA will make it more difficult to track COVID-19 exposure in the workplace to the detriment of retail, delivery, warehousing, transportation and food processing employees who are vulnerable to COVID-19 exposure.  In his blog post about proving up COVID-19 cases, Tom Robinson wrote passionately about how first responders and health care employees were getting more workplace safety protections than retail, delivery, transportation and food processing employees.

The two-tiered approach to workplace safety predates the COVID-19 pandemic. Lowly paid retail employees are routinely subjected to violence on the job, but they usually aren’t eligible for workers’ compensation benefits for strictly mental injuries or “mental-mental” injuries. By contrast, first responders are eligible for mental-mental benefits and a growing number of states are giving first responders a presumption that mental injuries are work-related. The COVID-19 pandemic is throwing these pre-existing divisions into starker contrast.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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