The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently updated its COVID-19 Frequently Asked Questions (“FAQ”) regarding employers’ reporting obligations during the COVID-19 pandemic.

As previously reported, effective as of May 26, 2020, OSHA has declared COVID-19 a recordable illness for all employers.  Thus, employers are responsible for recording workplace cases of COVID-19 on a OSHA 300 Log if the case:  (1) is confirmed COVID-19, as defined by Centers for Disease Control and Prevention (“CDC”); (2) is work-related, defined as “resulting from events or exposures occurring in the work environment;” and (3) involves one or more of the general recording criteria, which include death, days away from work, medical treatment beyond first aid, or loss of consciousness.  Moreover, employers must report to OSHA any work-related fatalities or hospitalizations due to COVID-19.

An employer’s work-related analysis is critical, as only work-related cases of COVID-19 must be recorded and/or reported to OSHA. Per OSHA’s Revised Enforcement Guidance, in order to determine whether a COVID-19 case is work-related, employers may ask the infected employee how they believes they contracted COVID-19, and while respecting employee privacy, may discuss at-work and out-of-work activities that may have led to the illness.  Employers should also review the employee’s work environment for potential sources of exposure.  Without an alternative explanation regarding COVID-19 exposure, there is a rebuttable presumption that COVID-19 exposure was work-related.  If an employer determines the COVID-19 case is not work-related, then the employer need not record the illness, but must keep its “work-relatedness” analysis in case questioned or investigated by OSHA at a later date.  While there is no specific guidance on the work-related analysis retention, OSHA has a five-year retention requirement for the OSHA 300 Logs (and the five-year clock begins at the end of the calendar year that these records cover).  Thus, it would be prudent to maintain any OSHA work-relatedness analysis and any OSHA 300 Logs for at least a five year period.

OSHA’s recently revised FAQ provide clarity on employers’ reporting obligations for work-related hospitalizations or fatalities due to COVID-19.  In relevant part, the FAQ set forth instructions on how to report certain work-related cases to OSHA, and the timing of such reports. The relevant Reporting FAQ state the following:

1. How do I report the fatality or in-patient hospitalization of an employee with a confirmed, work-related case of COVID-19?

You may report a fatality or in-patient hospitalization using any one of the following:

• • • Call the nearest OSHA office;
    • Call the OSHA 24-hour hotline at 1-800-321-OSHA (6742); or
    • By electronic submission, report online.

Be prepared to supply:  Business name; name(s) of employee(s) affected; location and time of the incident; brief description of the incident; and contact person and phone number so that OSHA may follow-up with you (unless you wish to make the report anonymously). 

2. An employee has been hospitalized with a work-related, confirmed case of COVID-19. Do I need to report this in-patient hospitalization to OSHA?

Under 29 CFR §1904.39(b)(6), employers are only required to report in-patient hospitalizations to OSHA if the hospitalization “occurs within twenty-four (24) hours of the work-related incident.” For cases of COVID-19, the term “incident” means an exposure to SARS-CoV-2 in the workplace. Therefore, 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. See 29 CFR §§1904.39(a)(2), (b)(7)-(b)(8).

Employers should note that 29 CFR §1904.39(b)(6)’s limitation only applies to reporting; employers who are required to keep OSHA injury and illness records must still record work-related confirmed cases of COVID-19, as required by 29 CFR §1904.4(a) . . . (emphasis added). 

3. An employee has died of a work-related, confirmed case of COVID-19. Do I need to report this fatality to OSHA?

Under 29 CFR §1904.39(b)(6), an employer must “report a fatality to OSHA if the fatality occurs within thirty (30) days of the work-related incident.” For cases of COVID-19, the term “incident” means an exposure to SARS-CoV-2 in the workplace.  Therefore, 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 . . . (emphasis added).

These FAQ clarify that exposure to COVID-19 in the workplace is the ‘work-related incident’ that starts the clock for reporting COVID-19 hospitalizations or fatalities.  Thus, if an employer learns that an employee was hospitalized within 24 hours of a work-related incident, and determines later that the cause of the in-patient hospitalization was a work-related case of COVID-19, the case must be reported to OSHA within 24 hours of that determination.  More stringently, if an employer learns that an employee has died within 30 days of a work-related incident, and determines later that the cause of death was a work-related case of COVID-19, the case must be reported to OSHA within 8 hours of that determination.

In sum, to comply with federal OSHA requirements during the COVID-19 pandemic, all employers must: (1) evaluate the work-relatedness for any COVID-19 case in the workplace, and maintain this analysis in the event of a later OSHA audit; (2) record COVID-19 confirmed work-related cases on an OSHA 300 Log; and (3) report to OSHA any work-related COVID-19 fatalities and hospitalizations, and pay particular attention to the new timing requirements. Of course, employers should note that many states have their own state OSHA rules and requirements (for example, California recently issued CAL/OSHA notice and reporting requirements); thus, employers should ensure compliance with both federal and state OSHA requirements in their jurisdictions.

EBG will continue to monitor OSHA developments and will provide updates on any recordkeeping or reporting requirements as the COVID-19 pandemic evolves.

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