Robert O’Hara Quoted in “OSHA Asks Employers to Investigate COVID-19 Claims”

Business Insurance

Robert J. O’Hara, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Business Insurance, in “OSHA Asks Employers to Investigate COVID-19 Claims,” by Angela Childers.

Following is an excerpt:

Employers are once again being asked to investigate positive cases of COVID-19 in the workplace and potentially record those cases for the U.S. Occupational Safety and Health Administration.

The federal agency changed course on May 19 when it issued guidance that essentially asks employers to investigate the potential genesis of any cases of COVID-19 among their employees, leading to questions and confusion among employers trying to get their workplaces back up and running, experts say. …

As more businesses get up and running again, employers “want a roadmap” on how to handle workers who come to them with positive COVID-19 tests, said Robert O’Hara, New York-based member of law firm Epstein Becker & Green P.C.

“It’s difficult for employers to find the right thing to do,” he said.

Under the revised enforcement policy, which took effect Tuesday, employers must “make reasonable efforts” to investigate confirmed cases of coronavirus in the workplace to determine if they were more likely than not work-related. …

The OSHA guidance does provide some examples to aid employers. For example, if multiple people in a particular business unit test positive for COVID-19, the assumption is that these coronavirus cases are work-related, Mr. O’Hara said. In places with communitywide spread where the employee could have picked it up on the subway, on the street or in a local big-box store it is less likely to be work-related, he said. …

Just because a virus may be recordable does not mean it’s compensable, Mr. O’Hara said.

“Occupational illnesses are very difficult to capture and correlate unless there is a direct correlation with some carcinogenic substance,” he said. …

Pushing COVID-19 claims into the workers comp system may help prevent a potential “deluge of suits” seeking recompense for hospital bills and deaths, Mr. O’Hara said. …

California Gov. Gavin Newsom issued an executive order providing a rebuttable presumption that positive COVID-19 cases were acquired in the workplace and compensable under workers comp in 16 industries deemed “essential” in the state. Illinois lawmakers in both houses on Friday passed bills creating a rebuttable presumption to make COVID-19 acquired by essential workers compensable.

“There is a lot of potential for activity out there,” Mr. O’Hara said. “Comp is a way to take care of a lot of that.”