Normally,… no.
The general rule under 1910.5(b)(2)(viii) is:
Not if the illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work).
However,… during the 2009 H1N1 Pandemic, OSHA issued the following enforcement guidance:
Injury/Illness Records. CSHOs must review the employer’s injury and illness records to identify any workers with recorded illnesses or symptoms associated with exposure(s) to patients with suspected or confirmed 2009 H1N1 influenza.
a. For purposes of OSHA injury and illness recordkeeping, illnesses due to the 2009 H1N1 influenza is not considered a common cold or seasonal flu. The work-relatedness exception for the common cold or flu at 29 CFR 1904.5(b)(2)(viii) does not apply to these cases.
Employers are responsible for recording cases of 2009 H1N1 illness if all of the following requirements are met:
(1) the case is a confirmed case of 2009 H1N1 illness as defined by CDC;
(2) the case is work-related as defined by 1904.5; and
(3) the case involves one or more of the recording criteria set forth in 1904.7 (e.g., medical treatment, days away from work).
Let’s see how this year’s very challenging Flu season progresses, and how OSHA responds.
Check my early January Blog on the Flu.
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About mavity2012
I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues.
Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession.
I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors.
I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values.
Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral.
As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
Howard Mavity 