Updated: OSHA Issues Revised Enforcement Guidance on Reporting COVID-19 Cases

October 2, 2020
October 2, 2020 Update. On September 30, 2020, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) updated its COVID-19 Frequently Asked Questions webpage to provide additional guidance on when employers should report work-related COVID-19 fatalities or in-patient hospitalizations to OSHA. This additional guidance has been incorporated into this updated post.
 
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July 28, 2020 Update. On or around July 27, 2020, OSHA revised, without explanation, its COVID-19 Frequently Asked Questions webpage to remove certain guidance addressing an employer's duty to report work-related COVID-19 fatalities or hospitalizations to OSHA.
 
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July 16, 2020 Update. On July 15, 2020, OSHA updated its COVID-19 Frequently Asked Questions webpage to, among other things, provide additional guidance on recording and reporting COVID-19 cases.

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On May 19, 2020, OSHA revised its enforcement guidance for determining whether an employee’s COVID-19 case is work-related and therefore recordable. The revised guidance provides steps that employers should undertake after learning of an employee’s COVID-19 illness and provides that if, after a reasonable and good faith inquiry, an employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness. A more detailed discussion of OSHA’s guidance follows.
 
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Revised Enforcement Guidance for Recording and Reporting Cases of COVID-19

On May 19, 2020, OSHA published revised enforcement guidance for recording cases of COVID-19, which will become effective on May 26, 2020. Our blog post on OSHA’s previous guidance—which will be rescinded on that same day—is available here. The revised recording guidance significantly modifies the prior guidance, which stated that COVID-19 is a recordable illness but that OSHA would not enforce its recording requirements for work-related COVID-19 cases, absent the employer having objective evidence that a confirmed COVID-19 case may be work-related.

Changing course, OSHA’s May 19, 2020 guidance states that employers are responsible for recording cases of COVID-19 if the following three criteria are met:
  1. The case is a confirmed case of COVID-19, meaning that the individual had at least one sample test positive for SARS-CoV-2, the virus that causes COVID-19;
  2. The case is work-related, meaning that 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; and
  3. The case results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or the case otherwise involves a significant injury or illness diagnosed by a physician or other licensed health care 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.
Under existing OSHA regulations, certain types of employers do not have a recording requirement—unless those employers have been asked to keep injury and illness records—including (1) employers with 10 or fewer employees; and (2) employers in certain low-hazard industries, for example, legal services providers, accounting services, and insurance carriers.  However, even if an employer generally does not have recording requirements, all employers must report any work-related incident that results in a fatality, in-patient hospitalization, amputation, or an employee loss of an eye.  (See 29 C.F.R. §§ 1904.1(a)(1), 1904.2). 

Fatalities and In-Patient Hospitalizations. OSHA's recent guidance specifies when an employer is required to report the fatality or in-patient hospitalization of an employee who was exposed to COVID-19 at work.
  • If an employee dies within 30 days of exposure to COVID-19 at work, then his or her employer must report the fatality to OSHA. OSHA explains, “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.” This means that if an employer learns that an employee died within 30 days of exposure to COVID-19 in the workplace, and later determines that the cause of death was a work-related case of COVID-19, the case must be reported within eight hours of that determination. This guidance applies only to reporting. An employer who is required to keep OSHA injury and illness records must still record work-related fatalities.
     
  • If an employee is hospitalized as an in-patient within 24 hours of exposure to COVID-19 at work, then his or her employer must report the in-patient hospitalization to OSHA. The employer must report the hospitalization to OSHA “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.” This means that if an employer learns that an employee was hospitalized as an in-patient within 24 hours of exposure to COVID-19 in the workplace, 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. Although this guidance is consistent with the reporting regulations, it does not appear to take into account guidance issued by the Centers for Disease Control and Prevention, which has stated that COVID-19 symptoms may appear 2-14 days after exposure to the virus. This guidance applies only to reporting. An employer who is required to keep OSHA injury and illness records must still record work-related confirmed cases of COVID-19.
Reporting Methods. Employers may report a fatality or in-patient hospitalization by either:
  • Calling the nearest OSHA office;
  • Calling the OSHA 24-hour hotline at 1-800-321-OSHA (6742); or
  • Filing an online report.
Employers should be prepared to supply:
  • The business name;
  • Name(s) of affected employees;
  • Location and time of the incident;
  • Brief description of the incident; and
  • Follow-up contact person and phone number so that OSHA may follow-up (unless the reporter desires to make the report anonymously).

Determination of Whether a COVID-19 Case is Work-Related

“[T]o provide certainty to employers and workers,” OSHA issued the below guidance for determining whether an employee’s COVID-19 illness is work-related and therefore recordable.

OSHA expects employers to make a “reasonable” investigation into work-relatedness. When an employer learns of an employee’s COVID-19 illness, it will generally not be expected to undertake extensive medical inquiries. Instead, employers should (1) ask the employee how the employee may have contracted the COVID-19 illness; (2) discuss with the employee the employee’s work and out-of-work activities that may have led to the COVID-19 illness, “while respecting employee privacy”; and (3) review the employee’s work environment for potential COVID-19 exposure, considering other instances of workers in that environment that have contracted COVID-19 illness. Whether an investigation is reasonable will depend on the evidence reasonably available to the employer at the time. If the employer later learns more information related to an employee’s COVID-19 illness, then that information should be taken into account as well. If, after a reasonable and good faith inquiry, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.

Absent an alternative explanation, certain factors may suggest that an employee’s COVID-19 illness is work-related, including where:
  • Several cases develop among workers who work closely together;
  • COVID-19 is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19; or
  • An employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission.
Other factors may suggest that an employee’s COVID-19 illness is not work-related, including where:
  • The employee is the only worker to contract COVID-19 in the vicinity, and the employee’s job duties do not include having frequent contact with the general public, regardless of the rate of community spread; or
  • The employee, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker; and (3) exposes the employee during the period in which the individual is likely infectious.
These factors are not exhaustive, and employers should consider any evidence of causation pertaining to the employee’s illness, including evidence provided by medical providers, public health authorities, or the employee.

The Coronavirus situation is fluid, and laws are changing rapidly. Our recent memoranda and other information discussing various aspects of Coronavirus can be found here.

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