Determining whether a worker has COVID-19 and whether it can be considered a work-related illness requires an analysis of both the clinical diagnosis
and possible work attribution
CDC has developed a surveillance case definition
for a probable case or death of COVID-19:
- Meeting clinical criteria AND epidemiologic evidence with no confirmatory laboratory testing performed for COVID-19; or
- Meeting presumptive laboratory evidence AND either clinical criteria OR epidemiologic evidence; or
- Meeting vital records criteria with no confirmatory laboratory testing performed for COVID-19.1,2
A surveillance case definition is intended to cast a wide net in defining a disease consistently but is not intended to be used for making a clinical diagnosis.3
However, it is a useful starting place, which can be supplemented by additional clinical, epidemiological, laboratory, and radiologic data10
in making a clinical diagnosis when all elements of the surveillance case definition are not met. In many cases, the diagnosis will be straightforward, with typical symptoms and a positive RT-PCR test result. However, sometimes the clinical diagnosis can be more challenging as the illness can have a widely varied presentation and course. And RT-PCR can have a high percentage of false negative results.4 In a pooled analysis, the probability of a false negative RT-PCR was 38% on the day of symptom onset, decreasing to 20% three days later.4
A negative RT-PCR result should therefore not exclude a diagnosis of COVID-19 if the diagnosis is strongly suspected on clinical grounds.
In the case of suspected COVID-19 with a negative RT-PCR result, the use of a reliable and validated antibody test could potentially be helpful
. The challenge is that more than 100 antibody tests are currently marketed and many tests are not reliable.5
When using an antibody test to confirm the diagnosis, it is critical to know which test was performed and the specificity and sensitivity of the test, as many will have high rates of false positives and/or false negatives. It is also important to look at when the test was performed in the course of illness as positive results are not reliably seen until 2 weeks into the illness.5
A clinical diagnosis can still be made based on the judgement of the clinician even in the absence of laboratory confirmation.
Once a clinical diagnosis has been made, a determination of work attribution is important for determining OSHA Recordability and how the illness will be treated under Workers Compensation
In April, OSHA provided guidance on work-relatedness determinations:
Employers of workers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904. Until further notice, however, OSHA will not enforce 29 CFR § 1904 to require other employers to make the same work-relatedness determinations, except where:
Whether an illness is compensable under Workers Comp is determined by the specific laws of the state where the employer is located.
- There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
- The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.6
For example, on May 6, Governor Newsom of California issued an Executive Order which stated that: “Any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation
benefits” if “the employee tested positive for or was diagnosed with COVID- 19 within 14 days after a day that the employee performed labor or services”.7
Under this order, this determination of work-relatedness creates a rebuttable presumption
, meaning that an employer can challenge the determination if there is evidence that the illness was acquired elsewhere.
The Illinois Workers Comp Commission passed a similar requirement, presuming that “workers contracted COVID-19 on the job if they work at businesses deemed essential by the state’s stay-at-home order, such health care, banks and grocery stores.”8
However, this was challenged and a judge halted enforcement of the rule, so that, like many states, Illinois still “requires employees to prove that their workplace was the cause of their illness.”8
Minnesota has enacted a statutory presumption of COVID-19 as an occupational disease for police, emergency responders, correctional workers, and certain healthcare and childcare workers.9
Many states also exclude “ordinary diseases of life”. Whether COVID-19 is compensable will therefore depend on the laws of the state and the specific circumstances of each case.