As detailed in an earlier blog post, as of May 26, 2020, the U.S. Occupational Safety and Health Administration (OSHA) requires employers to determine whether employee cases of COVID-19 are work-related, and therefore recordable on the employer’s OSHA 300 Log. OSHA has issued guidance to assist employers in making the determination of work-relatedness, which should serve as a starting point in responding to a report that an employee has tested positive for COVID-19. As discussed previously, the determination of work-relatedness is not only relevant to those employers required to maintain an OSHA 300 Log, but also to an employer’s obligation to report directly to OSHA in the event of the death or in-patient hospitalization of an employee resulting from COVID-19. Under a longstanding OSHA regulation, employers must report directly to OSHA “[w]ithin eight (8) hours after the death of any employee as a result of a work-related incident,” or “[w]ithin twenty-four (24) hours after the in-patient hospitalization of one or more employees…as a result of a work-related incident[.]”1
On September 30, OSHA updated its FAQs regarding employers’ reporting obligations, clarifying both the method of contacting OSHA to report cases of COVID-19 and the information that employers should be prepared to provide. However, most importantly, OSHA also clarified how soon after an in-patient hospitalization or death related to COVID-19 an employer must report directly to OSHA. Regarding in-patient hospitalizations, OSHA stated that:
in order to be reportable, an in-patient hospitalization due to COVID-19 must occur within 24 hours of an exposure to SARS-CoV-2 at work. The employer must report such hospitalization within 24 hours of knowing both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19. Thus, if an employer learns that an employee was in-patient hospitalized within 24 hours of a work-related incident, and determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19, the case must be reported within 24 hours of that determination.
Concerning an employee’s death for reasons related to COVID-19, OSHA similarly observed that:
in order to be reportable, a fatality due to COVID-19 must occur within 30 days of an exposure to SARS-CoV-2 at work. The employer must report the fatality within eight hours of knowing both that the employee has died, and that the cause of death was a work-related case of COVID-19. Thus, if an employer learns that an employee died within 30 days of a work-related incident, and determines afterward that the cause of the death was a work-related case of COVID-19, the case must be reported within eight hours of that determination.
While the turnaround time for employers to report hospitalizations or fatalities to OSHA is short, OSHA’s recent guidance should come as a relief to employers. This is because the clock for employers’ obligation to report to OSHA does not begin to run at the time of the qualifying hospitalization or fatality, but, rather, at the time that the employer has determined that the hospitalization or fatality is in fact work-related. Of course, regardless of in-patient hospitalization or death, employers should analyze whether any case of COVID-19 is work-related as soon possible, as employers also have an obligation under OSHA’s General Duty Clause to safeguard other workers from COVID-19. This duty will likely require prompt consideration of potential sources of exposure in the work environment, as well as the immediate notification and isolation of employees that had the same exposure as an employee with a work-related case of COVID-19. As observed in OSHA’s enforcement guidance regarding recording cases of COVID-19, “[i]n all events, it is important as a matter of worker health and safety, as well as public health, for an employer to examine COVID-19 cases among workers and respond appropriately to protect workers, regardless of whether a case is ultimately determined to be work-related.”
1 29 CFR 1904.39(a)(1) and (2).
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