On September 30, 2020, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) published a new series of answers to its "COVID-19 Frequently Asked Questions" (FAQs) guidance relating to an employer's obligation to report work-related hospitalizations and fatalities that occur as a result of COVID-19. The new FAQs clarify that the work-related "incident," which triggers an employer's reporting obligation, is an employee's exposure to the coronavirus in the workplace.
The requirement to report employee hospitalizations and fatalities is contained in OSHA's reporting regulation at 29 C.F.R. § 1904.39(b)(6). The regulation requires employers to report to OSHA any in-patient hospitalization of an employee resulting from a work-related incident if the hospitalization occurs within 24 hours of that work-related incident. The regulation also requires employers to report to OSHA any employee fatality resulting from a work-related incident if the death occurs within 30 days of that work-related incident.
Since the coronavirus began to affect employees in the United States, employers have faced difficulty in determining whether work-related hospitalizations and fatalities caused by COVID-19 are reportable to OSHA under 29 C.F.R. § 1904.39(b)(6). Specifically, what is the work-related "incident" that triggers the 24-hour period for reporting hospitalizations and the 30-day period for reporting fatalities to OSHA? Is it the employee's exposure to COVID-19 in the workplace, such that the employer must report the hospitalization only if it occurs within 24 hours of exposure to COVID-19? On the other hand, is the "incident" the employee's positive diagnosis for COVID-19, regardless of when the employee was exposed in the workplace?
OSHA's new FAQs clarify that for cases of COVID-19, "the term 'incident'" means "an exposure to SARS-CoV-2 in the workplace." Therefore, employers must report an employee hospitalization due to COVID-19 only if the employee is admitted to the hospital for in-patient treatment within 24 hours of an exposure to COVID-19 at work. For a work-related fatality resulting from COVID-19, employers must report the fatality to OSHA only if the employee dies within 30 days of an exposure to COVID-19 at work. These time frames determine whether the fatality or in-patient hospitalization is reportable to OSHA, or in other words, constitutes a "reportable event."
The reporting regulation also sets forth time frames for employers to actually report the reportable event to OSHA based on when the employer learns that the event is reportable. OSHA's new FAQs clarify this requirement as well. For reportable fatalities, "[t]he 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." [Emphasis added.] For reportable in-patient hospitalizations, "[t]he 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." [Emphasis added.] Note that for hospitalizations, the 24-hour period for making the report to OSHA is not the same 24-hour period that makes the hospitalization reportable (as discussed in the previous paragraph).
This latest interpretation in the FAQs aligns with the language of the regulation at 29 C.F.R. § 1904.39(b)(6). The language of Section 1904.39 indicates that the "incident" can be only the employee's work-related exposure to the coronavirus based on the regulation's multiple references to injuries and illnesses that occur "as a result of work-related incidents." [Emphasis added.]
However, in late July 2020, OSHA published a contrary interpretation on its website stating that for cases of COVID-19, the work-related "incident" was the employee's positive diagnosis, rather than exposure to the coronavirus at work. Within a few hours, OSHA removed those FAQs from its website. Now, through these new FAQs, OSHA has reversed course and announced its new interpretation (which is identical to the interpretation we advocated immediately after OSHA announced its July 2020 interpretation).
The interpretation expressed in OSHA's new FAQs will undoubtedly result in fewer reports of COVID-19-related cases, particularly in-patient hospitalizations. According to the U.S. Centers for Disease Control and Prevention, due in part to the delay in symptom onset for COVID-19, 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.
Importantly, OSHA made clear that the new guidance in its FAQs applies only to the requirement to report injuries and illnesses to OSHA. Neither the new FAQs nor the time limitation in 29 C.F.R. § 1904.39(b)(6) affect what employers are required to record in their OSHA 300 logs.
OSHA's FAQs are merely guidance, and employers may need to consult 29 C.F.R. § 1904.39 in making reporting determinations. Moreover, employers operating in one of the 22 states with OSHA-approved safety and health programs may want to also consult the state's requirements for reporting cases of COVID-19.
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