OSHA Clarifies COVID-19 Reporting (For Now)Oct 30, 2020
At the end of September, OSHA updated its COVID-19 FAQs to clear up the confusion employers had expressed about the reporting of employee coronavirus hospitalizations and deaths. This new guidance effectively allows employers to avoid reporting COVID-19 hospitalizations altogether.
OSHA requires employers to report — within 24 hours — any on-the-job illness or injury that leads to hospitalization. Previous guidance for reporting a COVID-19 hospitalization started the clock at diagnosis — or “within 24 hours of knowing both the employee has been hospitalized and that the reason for the hospitalization was COVID-19.” The previous guidance also stated that employers should report hospitalizations “regardless of when the exposure might have happened.”
The new guidance starts the 24-hour clock with the workplace incident that led to hospitalization. The guidance states that “if an employer learns that an employee was in-patient hospitalized within 24 hours of a work-related incident, 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.”
What’s this mean?
Because of the nature of the disease, the new 24-hour reporting window between the workplace exposure to COVID-19 and hospitalization means that employers won’t need to report any COVID-19 hospitalizations. People don’t get sick from COVID-19 that fast. According to the Centers for Disease Control and Prevention (CDC), almost everyone experiences symptoms between two to fourteen days following exposure. It often takes even longer for someone’s condition to deteriorate to the point of hospitalization. No one, to my knowledge, has ever been hospitalized within 24 hours of exposure.
While this new guidance is clarifying in a backhanded sort of way — and it does relieve the employer from reporting COVID-19 related hospitalizations — not everyone is happy about it.
Some industry watchdogs are concerned that the lack of employer reporting COVID-19 hospitalizations will negatively affect the government’s efforts to track large workplace outbreaks. Some of the country’s worst COVID clusters have been in workplaces like meatpacking plants and eldercare facilities.
Like many others who follow these issues, I believe OSHA should classify COVID-related infections like the cold or flu. It’s a virus and impossible to determine, definitively, the source of any COVID-19 infection.
Reporting employee death
According to the new guidance, an employee’s death must be reported to OSHA within eight hours — as long as the death occurred within 30 days of the employee’s work-related exposure. The eight-hour clock starts when the employer “knows both that the employee has died, and that the cause of death was a work-related case of COVID-19.”
The ongoing problem with determining “work-related” exposure
The only guidance that OSHA has provided to help employers determine the “work-relatedness” (29 CFR 1904.5) of COVID-19 infection is to strongly suggest that employers make an effort to find out if it is work-related. There is an expectation that employers will ask the employee a few questions, review the employee’s work environment, monitor other employees in the vicinity, and record this information.
While it’s tough to pinpoint precisely when and where an employee might have been exposed to an infectious disease, OSHA is encouraging employers to make educated guesses, assume “more likely than not” workplace exposure, and keep records. OSHA says it will continue to use enforcement discretion in evaluating an employer’s compliance with reporting rules.
I am confident there will be further adjustments to OSHA’s COVID-19 reporting expectations on the horizon. In the meantime, please let me know if you have any questions or concerns about any OSHA compliance issues in this dynamic area of government regulations.
About the Author: James Laboe