Though no one seems to have told the coronavirus, apparently the pandemic is over. Certainly lockdowns are easing and many of us have been or will soon be required to report back to the workplace—if you haven’t still been going there all along. With new cases of the virus on the rise and little to national appetite for a second shutdown, you may be wondering about your company’s legal responsibility to report cases of COVID-19 among its employees.
As with so many aspects of pandemic life, the issue is complicated. While specific federal protections are limited, there are some additional measures in place that could help employees learn if they were exposed to the virus in the workplace. There are no federal regulations requiring employers to report COVID-19 cases to the CDC, but there are some exceptions to this rule at the state level. There is also exists the general right of workers to be safe while in the workplace, as well as the right to organize if they feel unsafe.
Federal guidelines on reporting to the CDC
“Currently, no federal law mandates that all employers report Covid-19 cases in the workplace,” said Nandini Sane, a lawyer with Cozen O’Connor, in an email to Lifehacker. “These types of mandatory reporting requirements are typically addressed at the state and local levels, and vary by jurisdiction.”
These exceptions are rare, and without extensive research or a legal expertise, it’s sometimes hard to determine if they apply to your company or specific circumstance. California, for example, requires employers to record a COVID-19 case if it is work-related and results in either 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 professional.
Employees have the right to report workplace hazards
Reporting a COVID-19 case to the CDC is one matter. Reporting COVID-19 cases to other sources, such as colleague who might have been exposed, is another. The CDC’s recommendation is that employers inform their employees of possible COVID-19 exposure while also maintaining the confidentiality required by the Americans with Disabilities Act.
“Employees have a right to report workplace hazards, including COVID, to OSHA, or a state or local health authority, to the press, a lawyer or colleagues without being retaliated against,” said Amal Bouhabib, an attorney at Southern Migrant Legal Services, which provides free legal services to farmworkers in southern states, in an email to Lifehacker. As Bouhabib notes, employers are required by law to provide a safe workplace for their workers.
Employees have a general right to know about any known hazards in the workplace, which would presumably extend to being notified about potential exposure to the coronavirus. However, as Bouhabib cautions, this right comes from OSHA’s already existing standards, and their COVID-19 guidelines are recommendations only, not enforceable standards. These rights are also enforceable only by making a complaint to OSHA.
Workers have the right to organize
If workers are concerned that their employer is not adequately protecting them, they have the general right to organize, a right protected by the National Labor Relations Act.
As Bouhabib points out, some of the situations in which a worker would be protected from retaliation would include if they raise concerns about unsafe working conditions, either with a co-worker or on behalf of other employees; if workers talk among themselves about how to deal with unsafe conditions at work; if workers start a petition for changes at work; if workers report workplace problems to the media or a government agency; or if the form a union to address COVID-19 issues. (It should be noted that these protections do not extend to farmworkers, state and local government employees, domestic workers, supervisors and independent contractors.)
“I would be remiss if I didn’t note that although retaliation is illegal under the NLRA and OSHA, we all know retaliation happens anyway,” Bouhabib said. “Another way to protect yourself at work is to document your complaints and your employer’s responses if possible and if [it is] safe to do so.”
This would include making all requests in writing and writing down your own observations in detail. Another option is recording conversations or taking photos or videos of violations, although Bouhabib recommends talking with a lawyer before doing so to see if such actions are legal in your state.
Given the uptick in cases and the ongoing re-openings, it is more important than ever to know if you’ve potentially been exposed to the coronavirus. And when that potential exposure happens at work, you need to know what the law requires as well what actions you can take to ensure you’re as safe as possible when you head in to the office.