COVID-19 and the Cubicle

Ava Gehringer is a Trial Attorney with Kaveny + Kroll ( Born, raised and currently an Evanston resident, Ava Gehringer penned the following column on Covid and the Cubicle…

In March, a staggering eighty-one percent of employed Americans polled reported that they expected a negative effect on their workplace from COVID-19, according to a Gallup survey. However, in that same survey, approximately four in five American employees expressed confidence they would be able to successfully meet the requirements of their job, even if the outbreak continued. It has been four months since our nation’s cities -and offices- experienced the most drastic change in decades. Still, almost half of American workers continue to express concern about being exposed to COVID-19 at work.

Employees are not the only workers who express concern, though. As we begin piece together what the pandemic means for us as a society, employers have had to quickly adapt to an everchanging landscape of liability for potential workplace exposure to COVID-19. The Occupational Safety and Health Administration (“OSHA”) has most recently issued updated guidance for employers geared toward providing rules for when employers are responsible for recording cases of coronavirus in the workplace.

While this naturally places an added burden on employers, especially when it comes to how they are required to determine whether COVID-19 exposure is workplace related, it is one of the primary ways employers can work toward the collective goal of contact tracing as a means of reducing the overall case count in the country.

But these are unchartered waters for not only the general public but for employers. While OSHA has deemed COVID-19 a recordable illness, the same has never been true for the common cold or seasonal flu. An employer’s duty to record work-related instances of COVID-19 is thus new and, naturally, riddled with potential flaws.

What is particularly tricky is that, even if employers place strict guidelines to limit the exposure of employees to one another while in the office, several inherent hurdles make such guidelines less than foolproof.First, the more we learn about this virus, the more it becomes clear that it is most easily transmitted indoors with relatively close and prolonged contact with others. In short, the average office space. Second, while the interoffice rules employers place are set to reduce the risk or spread, employers cannot control the choices their employees make to otherwise expose themselves once they leave the four walls of the office. Thus, because no mask wearing, occupancy-limiting, surface wiping policy can completely negate the risk of exposure, there will always be the risk of potential workplace liability.

Cue OSHA. Under OSHA’s guidelines, upon learning about a case of COVID-19 within its walls, employers are required to conduct a reasonable investigation into the illness’s relation to work. If they deem the COVID incident was “work-related” it must be recorded on an OSHA form 300. Experts also encourage employers to document efforts to investigate, should OSHA raise questions.

OSHA defines “work-related” as an event or exposure in the work environment which either caused or contributed to the resulting condition, or significantly aggravated a preexisting injury or illness, subject to certain enumerated exceptions. Understanding this definition’s limitations and ambiguity OSHA gives examples of how an instance of coronavirus might be work-related, such as when several cases develop among workers who work closely together, absent no alternative explanation.

Yet, this reasonable investigation must be conducted while balancing it with the respective employers’ respect for privacy concerns of its employees and presumed lack of expertise in the medical field. In light of those concerns, OSHA notes that it is generally sufficient to ask the employee how he/she believes they contracted the illness and discuss possible activities they engaged in outside of the work setting that may have led to the illness.Employers must also, of course, review the employee’s work environment for potential COVID exposure.

Due to the natural difficulty involved in tracking potential workplace exposure, experts have encouraged employers to focus primarily on prevention. Though admittedly not a perfect solution, requiring employees to fill out affirmations that they have not been in close contact with a person with COVID and that they themselves are not experiencing COVID-related symptoms, taking the temperature of employees before shifts, social distancing, mandating masks in common areas, and sanitizing work stations are all prudent steps to take to stop the potential liability before it even begins. At the very least, such measures are a first line of defense for employers navigating the topsy turvy waters of the pandemic.