The COVID-19 pandemic has raised questions surrounding the duty of employers covered by the Occupational Safety and Health Act (OSHA) to report COVID-19 hospitalizations or fatalities to OSHA. Although OSHA regulations specify employers’ reporting requirements, OSHA published some “guidance” on its website that appeared to conflict with its own rules and created confusion for employers. So much confusion resulted that OSHA now has removed those portions from its website. Complying with the OSHA rules in the pandemic context is particularly important given that certain failures to report may give rise to substantial penalties, and OSHA’s most recent enforcement guidance (issued in May 2020) specifies that OSHA is currently prioritizing inspections related to COVID-19. While it is typically easy to determine when the clock begins to run on the employer’s time to report most workplace injuries, COVID-19 created new challenges for employers that merely wanted to play by the rules.
OSHA rules specify requirements for employers to report occupational injuries and illnesses (29 CFR Part 1904). As relevant to COVID-19, the rules govern reporting of “work-related” illnesses. For a COVID-19 case to qualify as work-related under 29 CFR 1904.5, “an event or exposure in the work environment” must either cause or contribute to the illness. In determining whether a case is work-related, OSHA will apply an evidentiary standard that is essentially 51 percent, meaning that an employer, after evaluating the criteria set forth in the rules and enforcement guidance, must classify the case as work-related only if it is more likely than not that workplace exposure played a causal role in the COVID-19 case.
If an employer determines that a particular COVID-19 case is work-related, it must then analyze OSHA’s timing requirements to determine whether the case is reportable. These timing requirements are found in 29 CFR 1904.39. Under this regulation, a case is reportable if the employee is hospitalized within 24 hours of the workplace exposure or dies within 30 days of the workplace exposure. This same reporting window for non-COVID-19 injuries and illnesses likewise applies to COVID-19 cases – employers must report the COVID-19 case to OSHA when a hospitalization occurs within 24 hours or a fatality results within 30 days of the workplace exposure. In such a case, even if the employer does not learn of the hospitalization or fatality immediately, the employer must report the case to OSHA within 24 hours of learning of a reportable hospitalization or within eight hours of learning of a reportable death. For clarity, we provide two examples below.
Employee has a confirmed COVID-19 test on Aug. 1. Employee’s last day at work is Aug. 1. Employer determines that case is work-related under OSHA criteria on Aug. 1. Employee isolates at home for one week, as symptoms are mild. On Aug. 8, employee’s symptoms worsen and he/she is admitted to the hospital for treatment. Employer learns of the hospitalization on Aug. 8. Case is not reportable to OSHA, as the hospitalization occurred more than 24 hours after workplace exposure.
Employee’s last day at work is Aug. 1 and ends at 6 p.m. Employee is admitted to the hospital at noon on Aug. 2 with a variety of symptoms. Employee has a confirmed COVID-19 test on Aug. 2 at the hospital, but results are pending for days. On Aug. 8, COVID-19 test results are returned, confirmed positive and shared with the employer. Employer determines that COVID-19 hospitalization is work-related under OSHA criteria on Aug. 8. Case is reportable, as the hospitalization occurred within 24 hours of the last workplace exposure.
The Retracted FAQ Guidance
As recently as a week ago, OSHA had guidance on its COVID-19 FAQ website that appeared to dispense with the rules’ timing provisions (discussed above) and instead could be ready to require essentially all cases to be reported, no matter how much time has passed since the employee’s exposure. OSHA now has removed the guidance concerning timing of reports from its website and said in response to media inquiries that it is preparing revisions.
While an updated FAQ likely will be posted, the lessons learned from this experience provide the most helpful guidance. The bottom line is that an employer’s reporting requirements are codified in the OSHA regulations – not in any FAQs, no matter how well-intentioned they may be. So when faced with any confusion, it is best to go back to the regs. In particular, 1904.5 and 1904.39 provide the most helpful guidance for the regulated community.