• Sasha Struthers

How to determine if an employee's COVID 19 diagnosis is work-related.

California's yo-yo diet of opening, closing and re-opening has given employers whiplash. To add to this vertigo, California has opened the workers' compensation flood gates with the rebuttal presumption an employee's COVID 19 diagnosis is work related.

Cal/OSHA has issued some guidance for employers on determining if an employee's COVID 19 diagnosis is work related or not- see here. While nothing in California employment law is black and white, the below breaks down Cal/OSHA's recommendations and should help employers in their investigation process.

Cal/OSHA requires an employer to make a reasonable determination that the employee's COVID 19 diagnosis is work related or not. Employers should document their inquiry efforts and the below will give you some guidance on what to account for. All notes and inquires should be done with discretion of the employee's privacy.

Step 1- Inquire with Employee after you learn they have COVID 19.

  1. Ask the employee how s/he believes s/he contracted the COVID 19 illness;

  2. While respecting employee privacy, discuss with the employee her/his work and out-of-work activities that may have led to the COVID 19 illness;

  3. Review the employee's work environment for potential COVID 19 exposure, taking into account any other instances of workers in that environment contracting COVID 19 illness.

Step 2- Compile and take note of any evidence you have of COVID 19 exposure at the time.

At the time you make the determination whether a particular employee contracted COVID 19 at work, the employer is held to the information reasonably available to the employer at the time. Any later acquired information should be taken into account in determining if the employee contracted COVID 19 at work. Later acquired information may change the determination.

Step 3- Consider the following factors in your analysis. Cases are likely work related if there is no alternative explanation.

Likely Work Related

  • Several cases develop among workers who work closely together.

  • Employee contracted COVID 19 shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID 19.

  • Her/his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission.

Likely Not Work Related

  • S/he is the only worker to contract COVID-19 in her/his vicinity and her/his job duties do not include having frequent contact with the general public, regardless of the rate of community spread.

  • S/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.

  • Evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee her/himself.

As an employer you are required to play detective a little, but not expected to know with definite certainty where your employee contracted COVID 19. It is requested of employers to exercise their due diligence in investigating a COVID 19 positive employee's potential exposure, document such investigative efforts and provide that documentation when required of you to Cal/OSHA. Above all, you want to work towards providing your employees, including yourself if you are a small business, a healthy and safe work environment.

Encourage employees who feel symptomatic to stay home. Even if you have to provide paid sick leave. In the long run, an employer is better guarded erring on the side of caution. Too much sick leave is better than being sued over too little sick leave. But this is case by case, employer by employer.

If you have an employee who filed a workers' compensation claim related to COVID 19, you should consult with your workers' compensation insurance attorney immediately and provide them all your investigation notes.

Should you have any questions about how to handle an employee who has COVID 19, believes they have COVID 19, fears contracting COVID 19 at work, or really any other COVID 19 employment conundrum please call 818-306-0686 or email me- sasha@struthers.legal.

The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.