{"id":206,"date":"2020-06-02T12:13:00","date_gmt":"2020-06-02T16:13:00","guid":{"rendered":"http:\/\/caloshadefensereport.com\/?p=206"},"modified":"2026-03-15T22:53:12","modified_gmt":"2026-03-15T22:53:12","slug":"cal-osha-establishes-a-presumption-of-work-relatedness-in-new-covid-19-recording-and-reporting-guidance","status":"publish","type":"post","link":"https:\/\/www.connmaciel.com\/calosha-defense-report\/cal-osha-establishes-a-presumption-of-work-relatedness-in-new-covid-19-recording-and-reporting-guidance\/","title":{"rendered":"Cal\/OSHA Establishes a Presumption of Work Relatedness in new COVID-19 Recording and Reporting Guidance"},"content":{"rendered":"

By Conn Maciel Carey\u2019s\u00a0COVID-19 Task Force<\/a><\/strong><\/em><\/p>\n

As we\u00a0previously reported<\/a>, in early April, the Head of Cal\/OSHA, Division Chief Doug Parker, provided feedback about Cal\/OSHA\u2019s COVID-19 Recordkeeping and Reporting expectations.\u00a0 The signal to employers back then was that Cal\/OSHA would be following\u00a0Federal OSHA\u2019s guidance on when employers must record COVID-19 cases<\/a>\u00a0on their 300 Logs, and that is not very often.<\/p>\n

Just last week, however,\u00a0Cal\/OSHA issued a new set of COVID-19 Recordkeeping and Reporting FAQs<\/a>, indicating that it has changed course from Division Chief Parker\u2019s April letter.\u00a0\u00a0This move comes only a few days after Fed OSHA\u00a0reversed course<\/a>\u00a0with respect to its own COVID-19 Recordkeeping and Reporting guidance.\"Cal-OSHA<\/p>\n

To be clear, while Fed OSHA\u2019s latest COVID-19 Recordkeeping guidance does retreat from some of the early relief OSHA had offered employers, in substance, it merely changes the landscape around the edges \u2014 requiring more employers to analyze work-relatedness for COVID-19 cases.\u00a0 Still fed OSHA only requires recording or reporting COVID-19 cases where it is \u201cmore likely than not\u201d that a COVID-19 case resulted from workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee\u2019s illness.<\/p>\n

Among other stark differences, Cal\/OSHA\u2019s new guidance flips the burden of establishing work-relatedness on its head.\u00a0 Now, according to Cal\/OSHA, a COVID-19 case in California will be presumed to be work-related if\u00a0any<\/em>\u00a0workplace exposure is identified, even if the cause of the illness is more likely attributable to a non-workplace exposure.<\/p>\n

Confirmed Case<\/strong><\/p>\n

Unlike Fed OSHA\u2019s previous and current recordkeeping guidance, Cal\/OSHA\u2019s FAQs now make clear that Cal\/OSHA does NOT require a positive test for COVID-19 to be necessary to trigger recording requirements.\u00a0 Cal\/OSHA states:<\/span><\/p>\n

\n

\u201cThere may be other situations in which an employer must make a recordability determination even though testing did not occur or the results are not available to the employer. \u00a0In these instances, the case would be still be recordable if it meets any one of the other general recording criteria [(death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed health care professional)], such as resulting in days away from work. Cal\/OSHA recommends erring on the side of recordability.\u201d<\/p>\n<\/blockquote>\n

Work-Relatedness<\/strong><\/p>\n

More importantly, Cal\/OSHA is diverging dramatically from Fed OSHA in terms of how employers are expected to determine whether an employee\u2019s COVID-19 infection is work-related.\u00a0 Rather than adopting Fed OSHA\u2019s \u201cmore likely than not\u201d standard and Fed OSHA\u2019s carve-out from work-relatedness for cases where there any identifiable alternative (non-work) explanation for the employee\u2019s illness, Cal\/OSHA has essentially established a presumption of work-relatedness if there is any identifiable workplace exposure that can be shown.<\/p>\n

Cal\/OSHA\u2019s FAQs identify the following factors as reflecting a work-related exposure:<\/p>\n

    \n
  1. Interactions with people known to be infected with the virus (apparently at any distance and for any duration);<\/li>\n
  2. Working in the same area where people known to have been carrying the virus had been; or<\/li>\n
  3. Sharing tools, materials or vehicles with persons known to have been carrying the virus.<\/li>\n<\/ol>\n

    If any of that occurs and the employee who experienced that interaction at work later develops the illness, the case is presumptively work-related.\u00a0 Cal\/OSHA\u2019s guidance does not, however, say whether that presumption is rebuttable, or if it is, how and what standard the rebuttal evidence must meet.\u00a0 Thus, it is not clear how Cal\/OSHA expects employers to evaluate circumstance where a workplace exposure can be identified, but a non-work exposure is also identifiable and much more likely to have caused the illness.<\/p>\n

    For example, an employee wearing a face covering had a thirty-second conversation two-feet away from an infected co-worker who was also wearing a face covering, but the employee also lives with a spouse who tested positive two days before the employee.\u00a0 The much more likely cause of the illness is the close contact with the spouse, but by Cal\/OSHA\u2019s standard, the mere possibility of exposure in the workplace makes it presumptively work-related.\u00a0 Per Cal\/OSHA\u2019s guidance, this case is presumptively work-related.<\/p>\n

    In such an instance, we advise documenting the conclusions as to work-relatedness with assistance from\u00a0Conn Maciel Carey\u2019s Work-Relatedness Questionnaire<\/a>, and if the illness is recorded as a result of the presumption, documenting the company\u2019s belief that it is not work-related, but is being recorded solely because of the presumption in Cal\/OSHA\u2019s guidance.\u00a0 If a decision to not record is made, documenting the reasons the company determined that the presumption was rebutted is even more important.<\/p>\n

    Cal\/OSHA further instructs that even if there is NOT a known workplace exposure that would trigger the presumption of work-relatedness, employers must still evaluate the employee\u2019s work duties and environment to determine the likelihood that the employee was exposed during the course of their employment.\u00a0 Specifically, Cal\/OSHA identifies the following factors that would be relevant for that analysis:<\/p>\n