Most of the heat and light surrounding the new Occupational Safety and Health Administration COVID-19 emergency temporary standard (ETS) involve the mandatory vaccination or test requirements. However, the rule contains a number of additional important changes for employers, which may take effect even if federal courts reject the main portions of the regulation. Key among these changes is the requirement that employers report COVID-19 related fatalities and hospitalizations to OSHA within 8 and 24 hours, respectively.

Under the Trump administration, OSHA issued an enforcement guidance document noting that it had become difficult for employers to determine whether an employee became infected with COVID-19 through a workplace exposure or some contact outside of work. In the absence of compelling evidence that the infection was spread through a workplace exposure, it was presumed not to be work-related, therefore relieving employers of the standard OSHA reporting and recording requirements.

Subpart (k) of the new ETS makes some subtle but important changes to this reporting requirement. It abandons the prior presumption and instead explains that the reporting determination should be made using the same OSHA rules in place for any other workplace illness or injury. If an employer learns of an employee hospitalization or death related to COVID-19, it must determine whether the exposure occurred at work or otherwise. To make this determination, the employer must consider the following factors:

1. The type, extent, and duration of contact the employee had in the work environment with other people, especially members of the public.
2. Physical distancing and other controls in place in the workplace.
3. The extent of time spent indoors in areas with limited ventilation.
4. Whether the employee had work-related contact with someone who exhibited signs and symptoms of COVID-19.

Practically, it is difficult to understand how an average employer will be able to make this determination in any meaningful or reliable way. The public contact factor alone could cause many employers to conclude that the illness is work-related for any employee who has significant contact with members of the public. Cautious employers may decide to report every employee hospitalization or death related to COVID-19 and include these illnesses on their OSHA 300 logs. By doing so, companies could expose themselves to workers’ compensation claims, premium increases, and other results ties to recordable illnesses.

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