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Is it Legal for an Employer Not to Report a Case of COVID-19?

As the number of COVID-19 cases in America continues to grow, more and more employers are faced with the question of whether to notify other employees, clients, public health officials, or other third parties of a positive case at the company. An employer may be legally obligated to report positive COVID-19 cases, depending on the circumstances. 

Employees, Clients, and Third Parties

Employers may owe a legal duty, per the Occupational Safety and Health Administration (“OSHA”), to share limited information of a workplace exposure to a communicable disease such as COVID-19 with employees, clients, and other third parties. For this reason, employers should provide some notice and take reasonable steps to prevent further transmission of the disease. That being said, any communication must avoid the disclosure of the employee’s name or any other personally identifiable information. While this information may not be subject to HIPAA privacy rules, it may be considered confidential under the Americans with Disabilities Act (“ADA”).

In the absence of a legal duty to disclose, some employers may still choose to voluntarily provide notice of a workplace exposure to coronavirus or another communicable disease to its employees, clients, or third parties. This notice may be needed to prevent further transmission of the disease and, in certain cases, consistent with CDC guidelines or those from local public health officials.  

Local Health Departments

It is true that there is no federal law on the books that imposes a legal requirement for employers to report positive COVID-19 cases in the workplace to federal agencies, such as the Centers for Disease Control (“CDC”) or others. That being said, this obligation is generally addressed at the local level. These legal impositions can be placed by state and/or local governments, as well as state and/or municipal public health departments and agencies. It is important to do research to understand and be aware of these legal obligations, as they will likely vary depending on the location. Many jurisdictions, however, place a legal duty to report health concerns only to laboratories, healthcare providers, or other medical professionals. Depending on the circumstances and the law that applies, many U.S. employers may not be covered as a mandatory reporter. Thus, they likely do not have any legal obligation to report a positive COVID-19 case to public health officials.  

Occupational Safety and Health Administration

Employers may have a duty to report positive COVID-19 cases or other communicable diseases contracted by employees to federal or state Occupational Safety and Health agencies under certain scenarios. Under the Occupational Safety and Health Act of 1970, employers must report an illness or disease in the workplace if it is both reportable and recordable. An illness or disease is “recordable” when the employer has an obligation to disclose the illness on an OSHA 300 log, which many white-collar businesses are exempt from maintaining. Moreover, an employer has a duty to report an illness in the workplace only if the business determines, in good faith, that the disease was contracted because of work exposure and requires medical treatment, a work restriction, or work absence.

If you have any legal questions, contact H&P Law today.

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