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Does Trump’s COVID-19 Case Need To Be Reported To OSHA? What Employers Can Learn From President’s Illness


President Donald Trump’s recent hospitalization at the Walter Reed Medical Center has captured the American public’s attention, especially given the potential implications with the election less than a month away. But for human resources and safety professionals, the news of the president’s positive COVID-19 diagnosis and a subsequent hospitalization has raised questions unrelated to the election: namely, whether his illness is considered “work-related,” and if so, how would it be treated under the Occupational Safety and Health Administration’s (OSHA) recordability and reporting laws. What can this most high-profile case of COVID-19 teach employers about mandatory safety reporting obligations?

Recordability Under OSHA

Before we dive into President Trump’s situation, let’s examine the legal standards related to workplace injury recording. The Occupational Safety and Health Act (OSH Act) is the most broadly applicable statute regulating American workers’ safety and health aspects of working conditions. Under the law, non-exempt companies must record work-related employee fatalities, injuries, and illnesses on OSHA 300 logs. Injuries and illnesses are only recordable if they result in any of the following: 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. Additionally, employers must report work-related incidents that lead to the in-patient hospitalization of one or more employees, an employee’s amputation, or an employee’s loss of an eye to OSHA within 24 hours.

An injury or illness is considered “work-related” if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. OSHA notes that “work-relatedness is presumed for injuries and illnesses resulting from events occurring in the work environment” unless a specifically identified exception applies.

Suppose it is not obvious whether the precipitating event or exposure occurred in the work environment or away from work. In that case, employers “must evaluate the employee’s work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.” OSHA has advised that the “work event or exposure need only be one of the discernable causes; it need not be the sole or predominant cause.”

COVID-19 Comes Into The Mix

On April 10, 2020, OSHA issued Enforcement Guidance for Recording Cases of Coronavirus Disease 2019, in which the agency stated that it would not enforce most non-healthcare industry employers’ recordkeeping obligation to make a work-relatedness determination except where (1) “there is objective evidence that a COVID-19 case may be work-related” and (2) the “evidence was reasonably available to the employer.” 

OSHA’s Revised Enforcement Guidance for recording cases of COVID-19 went into effect on May 26. Under this revised guidance, all employers must make determinations of work-relatedness for confirmed cases of COVID-19. Per the guidance, if the employer cannot determine whether it is more likely than not that exposure in the workplace caused a case of COVID-19 after it conducts a reasonable and good-faith inquiry, the employer does not need to record that COVID-19 illness.

OSHA has said it will consider the following factors for assessing whether an employer has made a reasonable determination of work-relatedness:

Thus, employers must record confirmed cases of COVID-19 on a case-by-case basis among its employees if it determines they are work-related. OSHA encourages recording employee diagnoses of COVID-19 unless, after conducting a reasonable and good-faith inquiry, the employer cannot determine whether it is more likely than not that exposure in the workplace caused a case of COVID-19. 

Contract Tracing The President

And now, with this understanding under our belts, we can examine President Trump’s situation. As with any inquiry into a workplace incident of COVID-19, determining the recordability of the president’s illness requires contact tracing. According to the Centers for Disease Control and Prevention (CDC), “close contact” for COVID-19 contact tracing purposes is anyone who was within six feet of an infected person for at least 15 minutes during the time period of 48 hours before the person has any symptoms or tests positive for COVID-19. Thus, President Trump’s positive COVID-19 diagnosis and subsequent hospitalization immediately raise questions about his whereabouts and personal interactions in the days before his diagnosis. 

If a COVID-19 incident were to arise among your workforce, this is the type of review and analysis you would need to conduct to ensure you have completed a reasonable and good faith inquiry.

Weighing OSHA’s Recordability Criteria To The Known Acts

Assume the president was one of your employees. What would you conclude in terms of whether you would need to record and report his COVID-19 diagnosis? Upon reviewing the above timeline, several of OSHA’s recordability criteria weigh heavily in favor of a finding of work-relatedness. For example:

Was The President’s “Hospitalization” Reportable To OSHA?

Next, we turn to the president’s weekend stint at Walter Reed Medical Center. Speculating on the basis for and timing of President Trump’s “hospitalization” is crucial to determine whether it is reportable to OSHA.

First, a hospitalization is only reportable if it occurred within 24 hours of the work-related illness. Thus, for the president's hospitalization to be reportable to OSHA, it must have not only been work-related but he must have been formally admitted to in-patient service within 24 hours of contracting the illness. Further, President Trump must have received medical treatment beyond mere observation within 24 hours of the illness.

Here, assuming the illness was work-related, it is uncertain whether the hospitalization was reportable to OSHA. We first learned of President Trump’s positive test early Friday morning. He went to the hospital later that evening reportedly for a more thorough evaluation and monitoring. This would not in and of itself constitute reporting. At some point, the president reportedly received an 8-gram dose of an experimental drug cocktail and other over-the-counter substances like zinc, vitamin D, famotidine, melatonin and aspirin. It is not clear, however, precisely when or where he received these treatments. If it were at the White House, it would not be reportable. If at the hospital, after being admitted, it may be reportable. 

Further, on either Friday or Saturday, the president also received doses of remdesivir, an antiviral drug identified early on as a promising therapeutic candidate for COVID-19 because of its ability to inhibit SARS-CoV-2 (MERS) infections. If the president received remdesivir on Friday within 24 hours of announcing his positive diagnosis, it would likely be reportable. If, however, he received the dose on Saturday, it would not be reportable.  

Takeaways For Employers

The above analysis illustrates the often speculative and imprecise nature of contact tracing and inquiries employers must make to sufficiently adhere to OSHA’s illness recording and reporting guidance. Of course, the president had close contact with countless others outside of work, providing plausible alternative explanations that his exposure and subsequent diagnosis of COVID-19 was not work-related.

But under OSHA’s current guidance, employers and their workers are left only to speculate whether, after conducting a reasonable and good-faith inquiry based on OSHA’s criteria, it is more likely than not that such a workplace exposure caused an employee’s – or the president’s – COVID-19 illness.

Fisher Phillips will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. Make sure you are subscribed to our alert system to get the most up-to-date information. For further information, contact your Fisher Phillips attorney, the authors of this alert, or any member of our Post-Pandemic Strategy Group Roster.

This Legal Alert provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. A version of this Alert originally published in Law360 on October 9.

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