All posts by Waltz, Palmer & Dawson, LLC

NEW FMLA NOTICES AND FORMS PUBLISHED BY DOL

The Department of Labor recently published new model notices and forms for employers to use when administering leave under the Family and Medical Leave Act (FMLA). While the changes to these documents aren’t groundbreaking, there are a few things worth noting for your reference.

Eligibility

The Eligibility Notice (form WH-381) is used to inform employees of their eligibility for FMLA leave, or provide at least one reason as to why the employee is not eligible for such leave. The changes to the document are minor but do provide some clarity on several points. There are separate boxes for an employee to check to specify what family member they are caring for, along with clearer sections that outline employee rights and responsibilities and how accrued, paid-leave provided by an employer (vacation/PTO) runs concurrently with the FMLA.

However, the notice still does not address the issue regarding the due date for medical certification. When an employee requests FMLA leave, there may be reason for an employer to request medical certification of the need for such leave. In such case, the FMLA states that the employer can deny unforeseeable leave if an employee fails to provide certification “within 15 calendar days from receipt of the request…”

However, the notice itself states that the medical certification must be returned within “at least 15 calendar days from the date the employer requested the employee to provide certification…” This was an issue in the older version of the model notice, as well, so employers are likely already familiar with this particular bit of confusion. The time-clock does not start until the employee receives the certification request.

If you mail it out to an employee Monday but they don’t receive it until Thursday, they have 15 days to return it starting that Thursday, not the day you sent it. For employers who use email for FMLA requests, this is a non-issue but for those still using paper mail, counting these days matters.

Designation

The Designation Notice (form WH-382) is used to inform employees whether their FMLA leave request has been approved or not. It also informs employees of the amount of leave that has been given to them and counted against their FMLA allotment. Employers can also used the form to inform employees that their certification is incomplete or otherwise insufficient and that more information is needed to complete the request.

Back in 2019, the DOL issued opinion letters stating that neither party, employer or employee, has the authority to decline FMLA protection for leave. In an effort to make that point clear, the DOL reiterates it on the Designation Notice form:

“The employer is responsible in all circumstances for designation leave as FMLA-qualifying and giving notice to an employee. Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such

leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave.”

The new form also provides the employee with steps to take in order to fix an incomplete or insufficient certification. But in order to make that feasible, the employer is required to specifically explain how the certification is incomplete or insufficient.

Medical Certification

The DOL provides us with two separate medical certification forms – one for when its regarding an employee’s own serious health condition, and one for a family member’s serious health condition. There are also certification forms for those employees who are taking military family leave under the FMLA.

Unlike previous iterations of the form, these new model certification forms specifically state that employees “may not request a certification for FMLA leave to bond with a healthy newborn child or a child placed for adoption or foster care.” This is often an area where employers and HR personnel get tripped up on, so its inclusion in the new form will be helpful for those taking in these forms in the future.

DOL Request for Info

The DOL also recently just issued a public request for information. The Department is seeking to “gather information concerning the effectiveness of the current regulations and to aid the Department in its administration of the FMLA.”

But rather than being a general request, the DOL has specific questions that it’s asking employers and employees to address. For example, the DOL wants to know what employees and employers would like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA. Further:

  • What challenges have employers and employees experienced in applying the regulatory definition of “serious health condition”?
  • What conditions have employers encountered that meet the regulatory definition of “serious health condition” but they believe the statute does not cover?
  • What, if any, difficulties have employers experienced in determining when an employee has a chronic condition that qualifies as a serious health condition under the regulations?
  • What challenges do employers and employees experience when an employee takes FMLA leave on an intermittent basis or on a reduced leave schedule?
  • What, if any, specific challenges do employers and employees experience when employees request leave or notify their employers of their need for leave?
  • Are employees aware of and able to comply with their employers’ specific procedural requirements for providing such notice? Are they aware of the specific information they need to provide?

Should you have any questions about the new model forms from the DOL, FMLA regulations, or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our business e-newsletter, pleases send an email request to www.info@wpdlegal.com.

Photo of roads leading into a city lined with skyscrapers.

GIVING PAID SICK LEAVE FOR CHICAGO TRAVEL ORDER

As you may already know, Chicago Department of Public Health Commissioner Allison Arwady, M.D. issued an Emergency Travel Order for people going in an out of the City of Chicago. The order was issued on July 2, 2020 and is effective from July 6, 2020 until further notice by the Commissioner. There are several issues that are particularly important for employers to be aware of now that this order has been passed, including when to give out paid sick leave and whether you can ban employees from traveling to certain areas.

Basics of the Order

The new travel order states that anyone who enters Chicago from a “High Incidence State” is subject to a mandatory self-quarantine period of 14 days, or the duration of the person’s presence in Chicago, whichever is shorter. High Incidence States are those that have a new COVID-19 case rate greater than 15 cases per 100,000 residents per day, over a 7-day rolling average.

As of July 13, 2020, the list of High Incidence States is limited to the following: Alabama, Arkansas, Arizona, California, Florida, Georgia, Idaho, Louisiana, Mississippi, North Carolina, Nevada, South Carolina, Tennessee, Texas, and Utah. The list is set to be reviewed and amended as necessary every Tuesday, beginning July 14, 2020. In the event that new states are added to the list, the order will be effective with respect to those states three days after they are posted (the following Friday).

You can access the most up-to-date list of High Incidence States on the City of Chicago’s website.

Are There Any Exceptions to the Travel Order?

Personal travel for purposes of medical care and parental shared custody will be permitted under the new travel order. Additionally, there is an exception for essential workers. People who are considered essential workers are not subject to the mandatory self-quarantine requirement under the new travel order, but only if their travel is for work purposes under the following circumstances:

  1. if a non-resident of Chicago is traveling from a designated High Incidence State to Chicago for the primary purpose of carrying out their primary work in Chicago, and who needs to be physically present in Chicago in order to carry out that primary work, with identification issued by their employer, or
  2. if a resident of Chicago is returning from a designated High Incidence State, and was in the designated state for the primary purpose of carrying out their primary work in that state, and who needed to be physically present in that state in order to carry out that primary work, with identification issued by their employer.

Essential workers who are travelling for non-work purposes are still subject to the mandatory self-quarantine requirement under the new travel order.

However, essential workers should still avoid any non-essential interactions until the quarantine period has ended, limiting their presence in public spaces and making sure to only participate in work-related activities.

Who are Essential Workers?

It is imperative that employers and employees alike take a close look at the criteria for an essential worker. The order is specifically referencing people who work in critical infrastructure as designated by the Cybersecurity and Infrastructure Security Agency. Government employees and officials at the local, state, and federal level who are traveling in their official capacities on government business, including military service, are also considered essential workers.

Does This Mean I Might Have to Pay Paid Sick Leave?

Yes. There is a distinct possibility that you may come across an employee who qualifies for paid sick leave due to this new order. As you may recall from our previous post, the Families First Coronavirus Response Act (FFCRA) lists several qualifying-reasons for paid sick leave, one of which is when the employee is “subject to a Federal, State, or local quarantine or isolation order related to COVID-19.” This new travel order is considered a local quarantine order related to COVID-19.

In the event you have a non-essential employee who traveled to a High Incidence State for any reason, or an essential employee who traveled to a High Incidence State for non-work-related reasons, they would be required to self-quarantine pursuant to the new travel order. If their quarantine makes it such that they cannot (tele)work, then it is very likely that they will qualify for two weeks of paid sick leave under the FFCRA.

What Steps Should I Be Taking?

As of now, day-to-day interstate commuters are not a particularly big issue, since it’s unlikely you would have employees traveling each day to Chicago from anywhere other than Indiana or Wisconsin, neither of which are currently on the list of High Incidence States. But in the event that you have out-of-state conferences or other such events planned, it’s advisable that you cease all employee business travel to and from High Incidence States as best you can, particularly if you are not an employer of essential workers.

In the event that you have essential employees who are traveling to and from High Incidence States for work-related purposes, it is important to remember that even though they may be exempt from the new travel order, the risk of a workplace outbreak of COVID-19 is still present. The last thing anyone wants is to have a case of COVID-19 in the workplace, so it is important to stay on top of all your routine cleaning procedures and safety protocols that you’ve implemented since this pandemic began.

Lastly, you should consider making some sort of identification material for essential workers who are traveling between Chicago and a High Incidence State. Remember, as stated above, essential workers are exempt from the new travel order but only if they’re engaged in work-related travel with identification provided by their employer.

Should you have any questions about the new travel order or any other COVID-19 related laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our business e-newsletter, pleases send an email request to www.info@wpdlegal.com.

TITLE VII PROTECTIONS FOR LGBTQ EMPLOYEES

The Supreme Court released several opinions today, one of the most important for employers being Bostock v. Clayton County, Georgia. The Bostock opinion holds that it is a violation of Title VII for an employer to fire an individual “merely for being gay or transgender.”

Details of the Case

The Court came to its decision with a 6-3 vote, with the majority opinion written by Justice Gorsuch, joined by Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. Bostock is a consolidated case that resolves the matters in Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, as well.

Most employers are very familiar with Title VII and its prohibition on discrimination against certain protected classes. More specifically, Title VII bars employment discrimination on the basis of race, religion, national origin, and sex. The issue before the Court in Bostock was whether “sex” also includes discrimination based on sexual orientation and gender identity.

After joining a gay recreational softball league, Gerald Bostock, a male employee in Clayton County, GA, was terminated because such activity was considered “unbecoming” by his employer. In New York, Donald Zarada lost his job as a skydiving instructor at Altitude Express just a few days after mentioning he was gay. And in Garden City, MI, Aimee Stephens wrote to her employer of the last six years that she planned to “live and work full-time as a woman” after being diagnosed with gender dysphoria. She was terminated shortly thereafter.

None of the employers denied that they fired their employees on the basis of being gay or transgender. Instead, the employers argued that “sex” as a protected class did not include discrimination on the basis of sexual orientation or gender identity, and therefore their actions were not prohibited under the law.

The Court’s Reasoning

The Court took a different stance. In its opening remarks, SCOTUS states that “sex plays a necessary and undisguisable role” in the decision to fire an employee for being gay or transgender, and that “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” In short, terminating an employee for being gay or transgender inherently involves an evaluation of the employee’s sex.

The majority rejected the employers’ argument that most people in 1964, when Title VII was passed, would not have expected the law to apply to LGBTQ employees, and therefore applying it to them now would fly in the face of legislative intent. Title VII uses broad language, Gorsuch points out, and as a result “many, maybe most, applications of Title VII’s sex provision were ‘unanticipated’” when the law was first passed. This includes discrimination on the basis of motherhood and the ban on sexual harassment of male employees. According to the majority, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands…Only the written word is the law, and all persons are entitled to its benefit.”

Illinois Protected Classes

While today’s decision changes the lay of the land for a number of other states, not much has changed for Illinois employers, assuming you’re currently in compliance with state and municipal law. The Illinois Human Rights Act (IHRA) already prohibits discrimination on the basis of actual or perceived sexual orientation. Further, the IHRA’s definition of “sexual orientation” explicitly includes actual or perceived “heterosexuality, homosexuality, bisexuality, or gender-related identity.” Similarly, Cook County also prohibits discrimination on the basis of sexual orientation or gender identity.

On top of all that, the Seventh Circuit Court of Appeals (the federal appellate system that includes Illinois) was the first federal appeals court to hold that sexual orientation was a protected class under Title VII back in 2017. For the last three years, employees could make a claim in federal court for sex discrimination on the basis of their sexual orientation.

What does this mean for Illinois employers? It means that employees have a cause of action for discrimination on the basis of sexual orientation under both state and federal law, as has been the cases for years prior to this SCOTUS decision. But it also means that employees now have a cause of action for discrimination on the basis of gender identity not only under state law, which was the case prior to today, but also under federal law. In short, transgender employees can take their discrimination cases to the Equal Employment Opportunity Commission (EEOC) now.

And this is now the framework for employers across the nation – employees in all 50 states now have a federal cause of action for sex discrimination for decisions made on the basis of their sexual orientation or gender identity.

What remains unresolved is how this decision affects other members of the LGBTQ community who are not gay or transgender. For example, the Bostock decision doesn’t directly address whether Title VII protects non-binary employees. We will have to wait for further case law or legislation to provide guidance on the issue.

Is There Anything I Should Do Now?

There are definitely some affirmative steps you should take to make sure you’re in compliance with this new SCOTUS decision. Most employers have employee handbooks or other policy documents that include language regarding discrimination in the workplace. You should check your company’s policy to make sure it at least has a catch-all stating that discrimination is prohibited on the basis of “all classifications protected by law” or something similar.

Additionally, all of your employees should receive updated training on discrimination and harassment in the workplace (in addition to the sexual harassment prevention training that Illinois requires). It’s particularly important for employees in HR or individuals who handle discrimination complaints to be well-versed on the implications of this decision. It has the potential to affect all sorts of employment decisions, not just termination.

Should you have any questions about discrimination in the workplace or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our business e-newsletter, pleases send an email request to www.info@wpdlegal.com.

 

WORKING FROM HOME DURING COVID-19

Now that Governor Pritzker has decided to move Illinois into Phase 3 of reopening, a number of employers have decided to open up shop again. However, the executive order that lays out the rules for Phase 3 still encourages all businesses to facilitate working from home when possible.  So, what are the best practices for a work-from-home environment, and what responsibilities do employers have to pay for employees’ resources at home?

Online Security

One of the biggest concerns for any business, whether employees are working from home or not, is keeping data secure. We utilize email countless times a day, sending proprietary information, trade secrets, employee medical information, and other confidential info back and forth. Many employers have already implemented cybersecurity measures in the workplace, such as encrypted email systems and private, password-protected internet service. But what about when an employee is working from home without access to any of the data-protection bells and whistles of the workplace?

The first thing is to make sure your employees are using a secure, private internet network when working from home. There are lots of unsecured network options offered by various companies, but those pose major data-breach risks and should not be used under any circumstances for work-related activities.

Another security measure to consider adding if you haven’t already is two-factor authentication. Essentially, it is a two-step process wherein an employee will provide their login information for whatever platform they’re using (email, online payroll program, etc.), and will be prompted to input a code that is sent to their phone, electronic key fab, or other device. So, access to sensitive work information will be doubly-secure when your employee is logging in from home.

Lastly, you may want to consider subscribing to an online or desktop-based password-management system. Instead of relying on employees to write down their passwords and keep them in some sort of notepad or book, a password manager will keep all of that sensitive information stored in a central, secure location on their computer. It lessens the possibility that someone can rifle through your employees’ belongings and find access to their email and other important work accounts.

Physical Security

As important as online security may be, that does not mean that you should ignore the physical safety of your information, as well. Employees may be writing down to-do-lists with confidential client information or printing off sensitive documents throughout the day as necessary. With this comes the potential for others to come across confidential business-information that would have otherwise been appropriately destroyed in the workplace. To combat this, employees should be instructed to regularly shred any documents that contain work-related information.

Employees should also be told to be vigilant when it comes to protecting company property. Working from home means that your property is not only accessible to your employee, but whomever walks through the employee’s home. That may be family, friends, or even people entirely unknown to the employee, such as apartment maintenance staff. Employees should never leave the company’s property unattended and out in the open for others to access. And under no circumstances should company property be shared with others in the employee’s household. A work computer is a work computer, and should only be used as such by the employee to whom it was assigned.

Who Pays for All of It?

Back in 2019, Illinois passed an amendment to the Illinois Wage Payment and Collection Act. This amendment requires employers to reimburse employees for work-related expenses. Specifically, this means paying for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.”

If you’re going to require a secured private internet network, a subscription password manager, a physical lockbox for storage of company property, use of a home printer, etc., these resources and items need to be funded, at least in part, by the company. The law does have limitations, however. For example, employers are not required to reimburse for losses caused by employee negligence, normal wear and tear, or theft (unless the theft results from the employer’s negligence). Nor are employers required to reimburse unauthorized expenses, requests that fail to comply with written reimbursement policies, or costs exceeding employer-established expense caps.

There is a discussion being had now about to what extent employers will be responsible for these expenses, considering telework is becoming the norm now during COVID-19. The fact of the matter is that Illinois’ reimbursement law is very new in the grand scheme of things. Case law takes a while to develop, and not enough time has passed yet for the state to develop any significant body of case law for us to see how courts interpret the statute. That means we’re largely left guessing at how strict the Illinois courts might be when it comes to what actions are and are not compliant with the law, based on other states with similar laws.

Your safest bet is to make sure you have a reimbursement policy in place that complies with Illinois law by having an attorney review it.

Stay Connected

Aside from all the serious stuff related to privacy and reimbursement, there is something to be said for trying to maintain the status quo regarding your office culture. Happy employees make for a more productive staff, which is always a plus for the business.

Stay in touch with your team. There are countless video-chat and conference call options for you to choose from. Keeping regular contact with your employees will not only help maintain a semblance of normalcy and replicate the frequent interactions you would otherwise have while at work, but it’s a way of making sure the team is maintaining productivity and meeting deadlines. Keep each other accountable!

Also, you might consider maintaining your regular “fun” work activities, or create new ones if you didn’t have them before. For example, lots of offices occasionally schedule happy hours for employees to interact with each other in a more casual setting. All work and no play isn’t going to help any of us when we’re stuck inside like this! Do what you can to facilitate camaraderie amongst your employees – it can do a lot of good.

FFCRA Toolkit

Last but not least, consider purchasing our Advanced FFCRA Toolkit, which includes a Short-Term Telecommuting Agreement that specifically addresses the current COVID-19 pandemic, along with numerous other documents to assist you with paid sick leave, expanded FMLA, and the employment decisions you may run into along the way.

Should you have any questions about policies to address COVID19 or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our business e-newsletter, pleases send an email request to www.info@wpdlegal.com

 

UPDATED OSHA GUIDANCE FOR COVID-19

The Occupational Safety and Health Administration (OSHA) released a new enforcement memo that went into effect May 26, 2020. Generally speaking, employers have certain obligations to make reports to OSHA regarding workplace injuries. Due to the pandemic, OSHA has been addressing employer concerns regarding when and how to record occupational illnesses contracted in the workplace. This new enforcement memo revises OSHA’s previous guidance, and these new guidelines should be used going forward until further notice from OSHA.

Standard Rule

Under OSHA’s record keeping requirements, COVID-19 is a recordable illness. Employers are responsible for recording cases of COVID-19 if all of the following conditions are met:

  1. the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC);
  2. the case is work-related as defined by 29 CFR § 1904.5; and
  3. the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

An injury or illness is 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.

A case meets the general recording criteria if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. A work-related injury will also meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or licensed healthcare professional, even if it doesn’t result in death, days away from work, etc.

Previous Guidance

OSHA’s previous guidance was implemented to ease the difficulty on employers who had to make determinations about whether employees were contracting COVID-19 due to work-exposure. The old guidance said that OSHA wouldn’t enforce 29 CFR § 1904, which requires employers to make work-related determinations except where there was (1) objective evidence that a COVID-19 case might be work-related and (2) that evidence was reasonably available to the employer.

Objective evidence could include something like an increase in COVID-19 cases among a group of employees who work close together without any other explanation. “Reasonably available” evidence could mean information given to an employer by its employees, or even information that an employer learns in the ordinary course of managing its business and employees, such as receiving an influx of sick leave requests for COVID-19 purposes among that group of closely-working employees.

Current Guidance

The primary change in OSHA’s guidance is related to the evidence an employer has that a COVID-19 cased might be work-related. Previously, employers didn’t have to worry about making work-related determinations except where there was objective evidence that a COVID-19 case might be work-related.

Now, OSHA has removed its emphasis on the need for an employer to have objective evidence of work-relatedness, meaning there is a greater burden on the employer to reasonably investigate and determine whether a COVID-19 case was contracted at work.

The language in the previous guidance suggested a passive role for employers – if an employee comes in with a complaint or you notice an uptick in cases among a specific group of employees, then you should notice there is an issue and address it accordingly. But now OSHA is telling employers that they need to take action right out of the gate. There is no more waiting for the evidence to appear. Employers now have to actively seek it.

What Does This Look Like in Practice?

Thankfully OSHA has given us a road map of what it means to “reasonably investigate.” OSHA makes it clear that employers, particularly small businesses, should not be expected to undertake extensive medical inquiries. This is primarily due to privacy concerns regarding employee medical information, but also the general lack of expertise most employers have when it comes to medical issues. However, employers still have to make a reasonable and good faith inquiry into an employee’s situation when they have contracted COVID-19.

In most circumstances, it is sufficient for an employer to do the following after learning of an employee’s COVID-19 illness:

  1. ask the employee how they believe they contracted the illness
  2. discuss their work and out-of-work activities that may have led to contracting the illness, while still respecting their privacy
  3. review their work environment for potential SARS-CoV-2 exposure

Step #3 should be informed by any other instances of workers in that environment contracting the COVID-19 illness.

After a reasonable and good faith inquiry, if an employer still cannot determine whether it is more likely than not that exposure in the workplace played a causal role with regards to a COVID-19 case, the employer doesn’t need to record that COVID-19 illness.

What is OSHA Looking For?

The new guidance also provides us with some key points that OSHA takes into consideration when investigating the sufficiency of an employer’s efforts to make work-related determinations. To start with, OSHA is going to look into whether an employer followed the steps above regarding the reasonable inquiry into an employee’s case of COVID-19. But the agency has also been instructed to look at other factors, as well.

OSHA is aware that not all information is readily available to employers. For that reason, the agency takes into account what information was reasonably available to the employer at the time it made its work-relatedness determination. If an employer later learns more information related to an employee’s illness, then that information should be taken into account as well when the employer is making a work-related determination. OSHA is ultimately looking to see whether employers are taking in all of the information at their disposal to make sound decisions.

The agency is also instructed to take into account what the nature of the evidence is that was available to an employer at the time they made their work-related determination, and whether that information should have put the employer on notice to record the illness. There is no hard and fast rule, but the new guidance does identify certain types of information that may weigh in favor of or against work-relatedness.

For example, OSHA will consider COVID-19 illnesses to be “likely work-related” when several cases develop among employees who work closely together and there is no alternative explanation. Similarly, an employee’s COVID-19 illness is likely work-related if it’s contracted shortly after lengthy, close exposure to a certain customer or coworker who has a confirmed case of the illness or when the employee’s job duties include having frequent, close exposure to the general public in a location that has ongoing community transmission and there is no alternative explanation.

An employee’s COVID-19 illness is likely not work-related if the employee is the only one who contracted the illness in their vicinity and their job duties don’t include frequent contact with the general public. The same thing goes for when an employee closely and frequently associates with someone outside of work (family member, significant other, close friend) who has COVID-19, isn’t a coworker, and exposes the employee during the period in which the sick individual is likely infectious.

Other Considerations

Given all of the above information, keeping up with COVID-19 in the workplace may seem overwhelming, and in many ways it is. But it is important to remember that recording a COVID-19 illness does not, in and of itself, mean an employer has violated any OSHA standard. This guidance is only for record keeping purposes, not for when you have to make a report to OSHA.

Also, standard OSHA regulations state that employers with 10 or fewer employees, and certain employers in low-hazard industries, have no recording obligations. These employers need only report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye.

Should you have any questions about recording vs reporting for OSHA purposes, whether you are exempt from any obligations under OSHA regulations, or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice. To subscribe to our business e-newsletter, pleases send an email request to www.info@wpdlegal.com.