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It's Hard to Be Positive: When is a “Confirmed Case” Confirmed Under OSHA’s COVID-19 Reporting Standards?

It’s Hard to Be Positive: When is a “Confirmed Case” Confirmed Under OSHA’s COVID-19 Reporting Standards? Background Image

As employers re-open workplaces, the use of rapid COVID-19 testing has proliferated. But if an employer learns of a positive result, is it required to report that result on its workplace injury logs? The answer isn’t so clear, especially with respect to results received from rapid antigen tests and blood draw tests.

As we previously discussed here, employers subject to OSHA’s recordkeeping requirements must record COVID-19 cases if the case: (i) is a confirmed case of COVID-19, as defined by the CDC; (ii) is work-related, as defined by OSHA regulations; and (iii) involves one or more of OSHA’s general recording criteria.

Per the CDC, a “confirmed case” is one that meets the “confirmatory laboratory evidence” standard. That standard requires the “[d]etection of severe acute respiratory syndrome coronavirus 2 ribonucleic acid (SARS-CoV-2 RNA) in a clinical or autopsy specimen using a molecular amplification test.” Blood draw and rapid antigen tests are not “molecular amplification” tests and, therefore, are not recordable under OSHA’s current guidance.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.