Seyfarth Synopsis: OSHA issued its first COVID-19 citation to a Georgia nursing home. The citation alleges a failure to report within 24-hours a work-related incident resulting in hospital admissions.
As discussed in our prior blog, OSHA has issued new enforcement procedures for COVID-19 cases going forward. OSHA has indicated that its “efforts to address COVID-19 have been its top priority since February. Our world changed with the arrival and spread of the coronavirus. Although the pandemic has changed the way OSHA completes its mission, it has never faltered in its commitment to ensure employers provide a workplace free of hazards. OSHA quickly pivoted to focus intensely on giving employers and workers the guidance they need to work safely in this rapidly changing situation; where appropriate, OSHA has also enforced safety and health requirements. Never before has OSHA staff been so focused on a single health risk. Throughout this crisis, the incredible men and women of OSHA have remained committed to carrying out their mission to keep America’s workers safe and healthy.” See Testimony of Principal Deputy Assistant Secretary Loren Sweatt before the House Education and Labor’s Workforce Protections Subcommittee on OSHA’s efforts to protect workers from COVID-19.
OSHA continued, saying that it “has existing standards that serve as the basis for its COVID-19 enforcement. Those standards include rules regarding respiratory protection, personal protective equipment (PPE), eye and face protection, sanitation, and hazard communication. In addition to those existing authorities, OSHA also has the ability to take appropriate action against employers under the OSH Act’s ‘general duty clause’.”
BNA reported that the “First Virus-Related OSHA Citation Goes to Georgia Nursing Home.” The May 18, 2020, citation was issued to the Windsor Nursing Inc., and included one Other-than-Serious item: “29 CFR 1904.39(a)(2): The employer did not report within 24-hours a work-related incident resulting in in-patient hospitalization, amputation or the loss of an eye. On 5/5/2020, the employer reported six hospitalizations that occurred as early as April 19th, 2020 but did not inform USDOL-OSHA of the hospitalizations until May 5th, 2020 at 7:14 am.”
Employers have a duty to report work-related hospitalizations due to an illness acquired at work. Work-relatedness requires a case-by-case inquiry, addressed in our prior blog. Because of widespread community transmission of the virus, most employee COVID-19 cases will not be considered work-related. Further, under the regulations (29 CFR 1904.39(b)(6)), employers need only report an in-patient hospitalization if it “occurs within twenty-four (24) hours of the work-related incident.” In the COVID-19 context, this means that employers only have a duty to report hospitalizations that they know occur within 24 hours of a workplace COVID-19 transmission. Employers normally lack information regarding the precise source of an infection and COVID-19 symptoms take 2-14 days to manifest. From a legal and factual perspective, it is virtually impossible or an employer to be aware of a COVID-19 hospitalization within 24 hours of a workplace transmission. Accordingly, employers generally will have no legal duty to report a COVID-19 hospitalization. Reporting a hospitalization could result in an onerous OSHA inspection and citations, as were issued here.