b'whethertheemployersdeterminationwas in the workplace does not make a case recordable.reasonable.This Monday-morning quarterbacking by OSHAplacesaburdenonemployerstorevisittheItremainstobeseenwhetherthisnewwork-relatedness determination of COVID-19 casesguidanceendsupbeingadistinctionwithoutathatwerenotrecorded,ifsubsequentinformation difference, as many employers are already investigat-suggests that the case should have been recorded.ing employee COVID-19 cases to protect their other employees and comply with various state government OSHAoutlinedthetypesofevidencethatdirectives.But,intheeventOSHApaysavisit,would weigh in favor of a COVID-19 case being workemployersshouldbepreparedtoprovetheyhave related,statingthatcasesarelikelyworkrelatedmadeareasonabledeterminationastothework-whenseveralcasesdevelopamongworkerswhorelatedness of employee COVID-19 cases.When an workcloselytogether;ifcontractedshortlyafteraemployer questions an employee with a known case lengthy and close exposure to a customer or coworkerof COVID-19, the questions and responses should be whohasthevirus;oriftheemployeesjobduties documented by the employer, dated, and stored in a involvefrequentandcloseexposuretothegenerallocation where the employees health information will publicinalocalitywithongoingcommunity be protected.If an employer decides that a particular transmission, and if there is no alternative explanationcase is not work related, it should document any and other than workplace exposure.OSHA stated that itall reasons supporting that determination.In addition, wouldalso[G]ivedueweighttoanyevidenceof employerswhotypicallyrelyupontheirworkerscausation, pertaining to the employee illness, (sic) atcompensation insurance carriers to investigate worker issueprovidedbymedicalproviders,publichealth claims,shouldnotstrictlyrelyontheinsuranceauthorities or the employee herself.companysinvestigationtodeterminethework-relatednessofthevirus.TocomplywithOSHAsOn the other hand, OSHA acknowledges thatdirective,employersshouldundertakeananemployeesCOVID-19illnessislikelynotwork- independentinvestigation(whichmayhavetobe related if the employee is the only worker in his workmoreextensivethantheirworkerscompensationarea to contract the virus; his job duties do not includeinsurancecarriersinvestigation)ofeachclaimand frequentcontactwiththegeneralpublic;orifthe arriveattheirownconclusionsaboutthework-employee,outsideofwork,closelyassociateswithrelatedness of COVID-19 cases. If the employer is in someone who has COVID-19.oneofthefewstatesthatprohibitprivateworkers compensation insurance the bulk of the investigation Last,OSHAclarifiedthatemployersmust onworkrelatednesswillfallontheemployersevaluatethework-relatednessofeachcaseusingashoulders.OSHAhasmadeitclearthatitisthemorelikelythannotstandard.OSHAstated,If, responsibility of the employer to make the reasonable after the reasonable and good faith inquiry describeddetermination and, therefore the employer will have to above,theemployercannotdeterminewhetheritisdefenditselfinthecaseofrecordabilitybymorelikelythannotthatexposureintheworkplacedemonstrating that it did act reasonably in making its played a causal role with respect to the particular casedetermination. of COVID-19, the illness is not recordable.In other words, a mere possibility that the exposure occurred1 This hands off policy did not apply to employers of workers in the healthcare industry, emergency response, or correctional institutions.Employers in those industries were required to continue making work-relatedness determinations on a case-by case basis. 2 As always, employers with 10 or fewer employees are not subject to the injury/illness recording requirements in 29 CFR 1904 and need only report cases of COVID-19 that result in death, hospitalization, amputation or loss of an eye.Page 15CONSTRUCTION JOURNAL'