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Law360 (October 9, 2020, 7:04 PM EDT )
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| Travis Vance |
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| Patrick Dennison |
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 it would be treated under the U.S. Occupational Safety and Health Administration's 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 Trump's situation, let's examine OSHA's legal standards related to workplace injury recording and reporting. All nonexempt 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, 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 must be reported by employers to OSHA within 24 hours.
COVID-19 Comes Into the Mix
OSHA's Revised Enforcement Guidance for recording cases of COVID-19 requires for all employers to make determinations of work-relatedness for confirmed cases of COVID-19.[1] 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.
Per OSHA's 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 considers certain factors, such as the reasonableness of the employer's investigation into work-relatedness and the evidence available to the employer that the illness was contracted at work, in assessing whether an employer has made a reasonable determination of work-relatedness.
Thus, when an employer learns of an employee's COVID-19 illness it should, at a minimum, ask the employee how they believe they contracted the illness and discuss with the employee their work and out-of-work activities that may have led to the illness. Employers should also review the employee's work environment for potential coronavirus exposure.
OSHA recognizes that evidence that a COVID-19 illness was contracted at work cannot be reduced to a ready formula, but suggests that COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together, or if the illness is contracted shortly after lengthy, close exposure to a particular customer or co-worker who has a confirmed case of COVID-19.
Similarly, the likelihood of a work-related finding increases where employees' job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission.
Conversely, nonwork-relatedness is evident when an employee is the only worker to contract COVID-19 in their vicinity and their job duties do not include having frequent contact with the general public, or if the employee closely and frequently associates with someone who is not a co-worker that has COVID-19 — e.g., a family member, significant other or close friend — and exposes the employee during the period in which the individual is likely infectious.
Contact Tracing the President
And now, with this understanding under our belts, we can examine 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, close contact for COVID-19 contact-tracing purposes is anyone who was within 6 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.[2]
Thus, Trump's positive COVID-19 diagnosis and subsequent hospitalization immediately raise questions about his whereabouts and personal interactions in the days before his diagnosis.
- On Saturday, Sept. 26, Trump hosted a ceremony in the White House Rose Garden where he announced his nominee for U.S. Supreme Court justice, Amy Coney Barrett.[3] Later that same day, he held a campaign rally in Middletown, Pennsylvania,[4] where reports indicate that adviser Hope Hicks joined him.
- On Sunday, Sept. 27, Trump held a briefing at the White House.[5] Notably, former New Jersey Gov. Chris Christie attended the news conference. Christie reportedly tested positive on Saturday, Oct. 3.[6]
- On Monday afternoon, Sept. 28, Trump held another news conference providing an update on the U.S. coronavirus testing strategy.[7]
- On Tuesday, Sept. 29, the president attended the first presidential debate at Case Western Reserve University, in Cleveland, Ohio.[8] First Lady Melania Trump and Hope Hicks, among others, attended the debate.
- On Wednesday, Sept. 30, the president attended a fundraiser near Minneapolis, and later a campaign rally in Duluth, Minnesota.[9]
- On Thursday evening, Oct. 1, Bloomberg[10] reported that Hope Hicks tested positive for COVID-19 and had "traveled with Trump aboard Air Force One to and from the presidential debate in Cleveland on Tuesday and to a Minnesota rally on Wednesday." Hicks reportedly fell ill in Minnesota and "quarantined aboard the presidential plane on the way home."
- On Friday morning, Oct. 2, at 12:54 a.m., Trump tweeted that he and the first lady tested positive for COVID-19 and would begin quarantining.[11]
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 Against 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, several positive cases have developed both before and after the president's positive diagnosis and hospitalization. Many of those positive cases are among workers who work closely together with the president.
This includes, first and foremost, Hope Hicks, who was reported to have tested positive before the president and with whom the president had close contact within 48 hours of his diagnosis. Additionally, several Trump staffers and campaign aides or members — including Nicholas Luna, Kayleigh McEnany, Chris Christie and Trump's campaign manager Bill Stepien — have tested positive.
Assuming Trump had close exposure to Hicks and the others during the last 48 hours before testing positive — and there is no alternative explanation for his diagnosis — the president's illness would likely be considered work-related.
Undoubtedly, his job duties, particularly dating back to Sept. 26, included having frequent, close exposure to the general public. However, there is no indication that the localities he visited had ongoing community transmission, lessening the likelihood of work-relatedness. That said, the president is not the only worker to contract COVID-19 regardless of community spread rate.
Finally, if the first lady is considered a co-worker, rather than a family member, this weighs in favor of a work-relatedness finding.
According to OSHA, an employee's COVID-19 illness is likely not work-related if they, outside the workplace, closely and frequently associate with someone — e.g., a family member, significant other or close friend — who (1) has COVID-19; (2) is not a co-worker, and (3) exposes the employee during the period in which the individual is likely infectious.
Generally, illness and symptom onset occur anywhere from two to 14 days after exposure, with a median time of four to five days from exposure to symptoms onset.[12] And at least one study suggests that about 97.5% of people who develop symptoms of SARS-CoV-2 infection will do so within 11.5 days of exposure.[13] The president and first lady were together well within the period in which either person was likely infectious.
Was the President's Hospitalization Reportable to OSHA?
Next, we turn to the president's weekend stint at Walter Reed National Military Medical Center. Speculating on the basis for and timing of 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, 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 Trump's positive test early in the morning of Oct. 2. He went to the hospital later that evening reportedly for a more thorough evaluation and monitoring.[14] This would not in and of itself require 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.[15]
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 Oct. 2 or 3 the president 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.[16] If the president received remdesivir on Oct. 2 within 24 hours of announcing his positive diagnosis, it would likely be reportable. If, however, he received the dose on Oct. 3, it would not be reportable.
Takeaways For Employers
The above analysis illustrates the often speculative and imprecise nature of contact tracing and the 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.
Travis Vance is a partner at Fisher Phillips and co-chair of the firm's workplace safety and catastrophe management practice group.
Patrick Dennison is a partner at the firm.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
[2] https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/contact-tracing.html.
[3] https://www.washingtonpost.com/graphics/2020/politics/coronavirus-attendees-barrett-nomination-ceremony/.
[4] https://www.c-span.org/video/?476135-1/president-trump-rally-middletown-pennsylvania.
[5] https://www.youtube.com/watch?v=4OjwPZOiRvU.
[6] https://twitter.com/GovChristie/status/1312416381758050305?s=20.
[7] https://www.whitehouse.gov/briefings-statements/remarks-president-trump-update-nations-coronavirus-testing-strategy/.
[8] https://www.c-span.org/debates/.
[9] https://www.c-span.org/video/?476320-1/president-trump-campaign-rally-duluth-minnesota.
[10] https://www.bloomberg.com/news/articles/2020-10-02/trump-aide-hope-hicks-tests-positive-for-coronavirus-infection.
[11] https://twitter.com/realDonaldTrump/status/1311892190680014849?s=20.
[12] https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.
[13] https://hub.jhu.edu/2020/03/09/coronavirus-incubation-period/.
[14] https://www.nytimes.com/2020/10/04/us/trump-covid-symptoms-timeline.html.
[15] https://www.whitehouse.gov/wp-content/uploads/2020/10/MemoFromThePresidentsPhysician-1.png.
[16] https://www.nejm.org/doi/full/10.1056/NEJMoa2007764.
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