OSHA

In recent months, businesses across the country have begun to transition back into the office at a time when COVID-19 cases are on the rise in some localities. This has presented a logistical challenge for many business leaders and HR personnel when it comes to maintaining OSHA compliance in the midst of a public health crisis, particularly in regard to recording and reporting work-related cases of COVID-19.

On September 30, 2020, the Occupational Safety and Health Administration (OSHA) published additional answers to its COVID-19 Frequently Asked Questions (FAQs) clarifying reporting and recording guidelines for COVID-19-related in-patient hospitalizations and fatalities. In this blog post, we will detail the specific circumstances in which employers are legally responsible to report instances of exposure to COVID-19 in the workplace, provide information on the appropriate timeline for these reports, and offer resources for how to report incidents to OSHA.

Recording vs. Reporting Requirements

According to OSHA’s recordkeeping requirements, “COVID-19 is a recordable illness,” and thus employers are responsible for recording cases of COVID-19, if:

  1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC). You can find the CDC’s standardized case report form here.

  2. The case is work-related as defined by 29 CFR § 1904.5, which states, “You must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception specifically applies.”

  3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7, which states, “An employer must consider an injury or illness to meet the general recording criteria, and therefore to be recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. An employer must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed healthcare professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.”

It should be noted, the time limits on reporting hospitalizations and fatalities do not apply to recording. Employers must still record all work-related cases of COVID-19 and fatalities, in addition to reporting hospitalizations and fatalities to OSHA.

Reporting COVID-19-Related Hospitalizations

If one of your employees has been hospitalized with a confirmed, work-related case of COVID-19, you need to report their in-patient hospitalization to OSHA if the hospitalization occurs within 24 hours of a work-related “incident,” which OSHA defines as, “an exposure to SARS-CoV-2 (COVID-19) in the workplace.”

An employer must report such hospitalization within 24 hours knowing both that:

  1. The employee has been hospitalized in-patient; and

  2. The reason for the hospitalization was a work-related case if COVID-19.

In other words, if an employer learns that an employee was hospitalized in-patient within 24 hours of a work-related incident and determines afterward that the cause of the hospitalization was a work-related case of COVID-19, the case must be reported within 24 hours of that determination.

According to Ogletree Deakins, “The interpretation expressed in OSHA’s new FAQs will undoubtedly result in fewer reports of COVID-19-related cases, particularly in-patient hospitalizations. [This is] due in part to the delay in symptom onset for COVID-19, as it is relatively rare for a person to be admitted to the hospital for in-patient treatment within 24 hours of being exposed to the coronavirus. Fatalities, on the other hand, have a longer look-back period of 30 days.”

Reporting COVID-19-Related Fatalities

If one of your employees dies of a work-related, confirmed case of COVID-19, you need to report this fatality to OSHA if the fatality occurs within 30 days of the work-related incident.

An employer must report the fatality within eight hours knowing both that:

  1. The employee has died; and

  2. The cause of death was a work-related incident of COVID-19.

Thus, if an employer learns that an employee has died within 30 days of a work-related incident and determines afterward that the cause of death was a work-related case of COVID-19, the case must be reported within eight hours of that determination.

How to Make an OSHA Report

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)

  • Report online by electronic submission

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.

Understanding and maintaining knowledge on regulations and laws related to the pandemic is laborious and some companies may not know what resources are available or what they should do next. Our PEO team is here to help you navigate the waters through tremulous times like these. To learn more about what SWBC PEO can do to assist your business, visit our website.

This material is provided for information only. It is not intended as legal or tax advice. You should consult your legal counsel or tax advisor for advice specific to your business situation.