The Occupational Safety and Health Administration (OSHA) has clarified its directive regarding COVID-19 reporting obligations, easing the burden it previously adopted for employers. In the meantime, other states are enacting laws codifying their reporting requirements for employers.
OSHA’s new Frequently Asked Questions (FAQ) regarding its reporting and recordkeeping requirements and the conflicting state regulations create confusion for employers — and increase their chances of running afoul of enforcement efforts, say attorneys Gillian G. W. Egan and Cressinda D. Schlag of the Jackson Lewis law firm.
“It is an unfortunate outcome of this pandemic that in the OSHA world, guidance lags behind enforcement,” they said. “While state and federal agencies try to make up their minds on the best way of managing COVID-19 threats in the workplace, many employers who have to remain open are receiving citations and penalties for, essentially, making educated but incorrect guesses on what to do.”
The confusion isn’t just limited to federal and state safety agencies, the attorneys point out. “Even the Centers for Disease Control and Prevention (CDC) guidance has flip-flopped. Often, employers are forced to write preventative plans and procedures in pencil so that they can be easily erased and rewritten to conform on a moment’s notice.”
As an example, the lawyers cite the decision regarding whether to report an employee’s hospitalization or death due to COVID-19 to OSHA. Most infectious diseases are not recordable or reportable under OSHA regulations. The main reason is that because of the prevalence of common infectious diseases in the general population, it is nearly impossible to determine whether an infection is work-related or not.
Changing Reporting Requirements
In April, the agency based its position on this principle, holding that most employers were not required to record cases of COVID-19. Employers outside of the healthcare industry only needed to record an employee having the disease if there was “objective evidence” that the case was work-related and the evidence was “reasonably available” to the employer.
In mid-July, OSHA quietly updated its COVID-19 FAQs to add “a guidance that took an extremely broad, and probably unenforceable, interpretation of an employer’s responsibility to report COVID-19 hospitalizations and fatalities,” Egan and Schlag say.
That approach, which was deleted from the site just a couple of weeks later, required employers to report COVID-19 hospitalizations and deaths regardless of work-relatedness or timeline between the potential workplace exposure (that is, last day worked) and the reportable event, the lawyers noted.
“Such an approach would have required reporting on COVID-19 cases that did not occur during the regulatory limitations period for reporting — a complete departure from the regulation,” they said.
As a result, employers were allowed to return to the earlier recommendation of reporting an employee hospitalization within 24 hours of learning about it, regardless of the amount of time that had passed since the employee was last exposed to the coronavirus at work.
The Latest Guidance
In these most recent FAQs published Oct. 1, OSHA defines a “work-related incident” as “an exposure to SARS-CoV-2 in the workplace.” This is a significant and welcomed departure from OSHA’s previous position, which eliminated the work-relatedness determination altogether, Egan and Schlag say.
Under the agency’s regulations, employers must contact OSHA to report certain serious work-related injuries and illnesses, such as fatalities and in-patient hospitalizations. These reporting requirements, which are dependent on employer knowledge, are also tied to specific timing considerations and constraints.
Employers have eight hours to report a work-related fatality that occurs within 30 days of the work-related incident (i.e., event or exposure) precipitating it. Employers also have 24 hours to report an in-patient hospitalization if the hospitalization occurs within 24 hours of the work-related incident that caused it.
OSHA stresses that employers should note that the 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.
The attorneys add that although the FAQs do not carry the same weight as formally adopted regulations, the absence of a formal rule means that the agency’s COVID-19 guidance memorandums and FAQs are employers’ best resource to understand how federal OSHA views these issues and the position OSHA will likely take in enforcement actions.
Additional State Reporting Requirements
In addition to ensuring federal OSHA compliance, employers must follow various states have their own reporting requirements. Of the 28 OSHA-approved state plans, several have taken varying positions on COVID-19 case management, resulting in distinct reporting requirements, notably in California, New Mexico and Virginia.
California’s reporting requirement is unique because it was recently codified as part of a package of new laws governing how employers respond to the disease. Under its standard, a COVID-19 case does not have to be confirmed through testing to be deemed reportable. A case must be reported if it meets the definition of a “serious injury or illness” irrespective of when a potential exposure may have occurred. The case may also need to be reported even if work-relatedness determination is uncertain.
Under one of the Golden State’s new laws, effective Jan. 1, 2020, a presumption exists that employees’ COVID-19-related illnesses or deaths are covered injuries for purposes of workers’ compensation, under certain circumstances.
The new law in the nation’s most populous state requires employers to provide notice of a potential COVID-19 exposure to employees in four circumstances:
- When a public health official or licensed medical provider notifies the employer that an employee was exposed to a “qualifying individual” at the worksite.
- When an employee or the employee’s emergency contact notifies the employer that the employee is a “qualifying individual.”
- When the employer’s COVID-19 testing process discloses that the employee is a “qualifying individual.”
- When a subcontracted employer notifies the employer that a “qualifying individual” was on the employer’s worksite.
Egan and Schlag note the challenge for employers that must juggle reporting obligations to state and local health departments, notification requirements to employees and other third parties, and coordination with federal and state government agencies on COVID-19 concerns.
“Constantly evolving and, at times, inconsistent guidance from federal OSHA, government agencies and state agencies ultimately leaves employers with significant uncertainty and confusion as well as less opportunities to be successful in hitting their compliance targets,” the attorneys say.
“To avoid regulatory liability and minimize risks of enforcement, employers need to be diligent in managing COVID-19 cases, even if they are likely from community exposures, and maintain effective records.”
They also strongly recommend creating a written plan for managing COVID-19 cases in advance. Employers should regularly update it to account for changes and notification requirements to make sure reporting is completed in a consistent, timely manner and in accordance with all requirements.
