OSHA’s COVID-19 Reporting Obligations Clarified

Allen Smith, J.D. By Allen Smith, J.D. October 15, 2020
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​Employers will rarely have to report COVID-19-related hospitalizations due to the virus's lengthy incubation period, according to the Occupational Safety and Health Administration's (OSHA's) clarification on the reporting rules for work-related hospitalizations and fatalities.

Under this new interpretation, employers must more frequently report COVID-19-related deaths and must continue to record numerous COVID-19 cases among their employees.

"This revised rule represents a significant change and an improvement over the prior rule," said Jonathan Snare, an attorney with Morgan Lewis in Washington, D.C. "There had been some confusion as to the meaning of the 'work-related incident' triggering the time frames for reporting." OSHA has now made it clear that the reporting time frames are triggered by an exposure to COVID-19 at work, rather than a diagnosis.

Gillian Egan, an attorney with Jackson Lewis in New Orleans, emphasized that many states have differing occupational safety and health laws and COVID-19 regulations. "So, employers must check their states for reporting requirements because they may be more stringent, particularly in California, New Mexico, Virginia and soon Oregon."

Also, be sure to distinguish between reporting and recording. "Reporting involves contacting OSHA via phone or website and giving them information that could launch a full OSHA inspection and, in the case of COVID-19, most certainly will," she said. "Recording involves noting a work-related incident on the OSHA log, which is kept internally and is not necessarily reported to OSHA."

Hospitalization Reporting Rule

Snare explained that the federal OSHA reporting rule on hospitalizations was revised in September 2014, effective on Jan. 1, 2015, to lower the threshold of reported events from three employees to one employee who was hospitalized due to a work-related event.

"This 2015 revision was significant as it resulted in a substantial increase of reported workplace incidents to OSHA," he said. "This same rule has been applied during the COVID-19 pandemic."

Under the 2015 rule, employers must report to OSHA within 24 hours of any work-related incident that results in the hospitalization of one or more employees, an employee's amputation, or an employee's loss of an eye.

In answer to a frequently asked question, OSHA recently clarified that to be reportable, a hospitalization due to COVID-19 must happen within 24 hours of an exposure to the virus at work. In addition, the employer must report the hospitalization within 24 hours of knowing that the employee has been hospitalized and that the reason for hospitalization was a work-related case of COVID-19, OSHA explained.

Eric Conn, an attorney with Conn Maciel Carey in Washington, D.C., noted that if the employee has only been in the waiting room or emergency room within 24 hours, but not admitted to the hospital, this doesn't qualify as a reportable hospitalization.

Suppose an employee left work after displaying symptoms on Oct. 1 at 4 p.m. The employee went home, but the symptoms got worse and he checked himself into the hospital on Oct. 2 at 9 a.m. "This would be reportable since his last exposure date at work was within 24 hours," said John Ho, an attorney with Cozen O'Connor in New York City.

But if the employee did not check into the hospital until Oct. 4, "This would not be reportable since his last work-related exposure date was after 24 hours."

John Martin, an attorney with Ogletree Deakins in Washington, D.C., provided another hypothetical. Suppose employees Carol and David were both admitted to a hospital for COVID-19 infections on Wednesday at 3 p.m. and the company conceded that Carol's and David's infections were work-related. David was last at work on Tuesday at 5 p.m. Carol was last at work on Monday at 5 p.m. David's case would be reportable because he was hospitalized within 24 hours of being exposed to COVID-19 at work. Carol's case is not reportable.

Fatality Reporting Rule

The reporting requirement for fatalities from a work-related COVID-19 infection is triggered when an employee dies within 30 days of being exposed to COVID-19 at work, noted Porpoise Evans, an attorney with Weiss Serota Helfman Cole and Bierman in Miami. From the time it learns of the death and knows that the cause of death was a work-related case of COVID-19, the employer will have eight hours to report it to OSHA.

Expanding on Martin's hypothetical, suppose Aug. 1 was the date Carol and David were initially hospitalized, and they both eventually succumbed to COVID-19. David died on Sept. 12 and Carol died on Aug. 15. David's death would not be reportable, even though his hospitalization was, because his incident of exposure occurred on Tuesday, July 31, and his death was beyond OSHA's 30-day window to report fatalities, Martin noted.

Carol's death would be reportable to OSHA, even though her hospitalization was not, because her incident of exposure occurred on Monday, July 30, and her death occurred within OSHA's 30-day window.

Nonetheless, Conn said the work-relatedness of COVID-19 will be questionable in many cases. "The steep hurdle to find work-relatedness for this invisible, ubiquitous virus will still be a bar to reporting or recording most COVID cases," he said.

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

Recording Obligation

The time limits on reporting hospitalizations and fatalities don't apply to recording, OSHA noted. Employers still must record work-related cases of COVID-19 and fatalities.

Conn said the recording duty is more of a struggle for employers than reporting, particularly in making the work-related determination.

When recording COVID-19 cases, "Everyone is doing it differently," he said.

Some employers are recording all COVID-19 cases with an asterisk if they couldn't tell whether the cases were work-related. But Conn said others aren't recording anything until they make that determination to avoid artificially inflating their illness rates.

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