New guidance on reporting coronavirus cases to OSHA

Particularly hospitalizations

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Contributors

The Occupational Safety and Health Administration (OSHA) has issued new guidance about reporting work-related cases of COVID-19.

Does a case have to be confirmed to be reported?

Pursuant to recent federal OSHA guidance, a COVID-19 case should generally be confirmed through testing to be recordable. However, due to testing shortages and a variety of other reasons, not all persons determined to have COVID-19 have been tested, so Cal/OSHA recommends erring on the side of recordability (even if testing didn’t occur or the results are not available to the employer). In these instances, the case would be still be recordable if it meets any one of the other general recording criteria from Section 14300.7, such as resulting in days away from work.

How do you know if the case is “work related”?

A work-related exposure in the work environment would include interaction with people known to be infected with SARS-CoV-2 (the virus that causes COVID-19); working in the same area where people known to have been carrying SARS-CoV-2 had been; or sharing tools, materials or vehicles with persons known to have been carrying SARS-CoV-2. Given the disease’s incubation period of 3 to 14 days, exposures will usually be determined after the fact.

If there is not a known exposure that would trigger the presumption of work-relatedness, the employer must evaluate the employee’s work duties and environment to determine the likelihood that the employee was exposed during the course of their employment. Employers should consider factors such as:

  • The type, extent and duration of contact the employee had at the work environment with other people, particularly the general public.
  • Physical distancing and other controls that impact the likelihood of work-related exposure.
  • Whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19.

What if the employee started showing symptoms outside work?

Reportable serious illnesses include illnesses contracted “in connection with any employment,” which can include those contracted in connection with work but with symptoms that begin to appear outside of work. An employer should report a serious illness if there is cause to believe the illness may be work-related, regardless of whether the onset of symptoms occurred at work.

For COVID-19 cases, evidence suggesting transmission at or during work would make a serious illness reportable. An employer should consider factors similar to those described above:

  • Multiple cases in the workplace.
  • The type, extent and duration of contact the employee had at the work environment with other people, particularly the general public.
  • Physical distancing and other controls that impact the likelihood of work-related exposure.
  • Whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19.

Even if an employer cannot confirm that the employee contracted COVID-19 at work, the employer should report the illness to Cal/OSHA if it results in in-patient hospitalization for treatment and if there is substantial reason to believe that the employee was exposed in their work environment (see next section).

Obligations related to hospitalizations

If the employee is hospitalized due to COVID-19 contracted at work, employers subject to OSHA must report it only if the hospitalization “occurs within twenty-four (24) hours of the work-related incident.” However, the FAQs imply that this 24-hour language is not particularly relevant to this issue, and employers have to report any instance of employee hospitalization as a result of COVID-19, regardless of when the last exposure to COVID at work occurred.

Since employers may not always be informed (and may not actively be asking everyone out on medical leave about COVID, due to obvious privacy concerns) it is not clear that employers would know if an employee is hospitalized “as a result of COVID-19.” However, the employer must report the case to OSHA within 24 hours if it presumes the employee was hospitalized after testing positive (based on known factors) or receives confirmation that the employee was hospitalized due to COVID – regardless of when the last exposure at work took place. However, employers should tread carefully because hidden pitfalls lie in treating employees as COVID-positive.