We recently sent out a Legal Briefing detailing the Biden Administration’s new 2021 Occupational Safety and Health Administration (“OSHA”) guidance to employers regarding workplace safety during the COVID-19 pandemic. This prior Legal Briefing can be found here at this hyperlink: OSHA: COVID-19 in the Workplace (lawpf.com).
This Legal Briefing noted that employers need to record and report COVID-19 infections and deaths (and other applicable items) utilizing Form 300 logs if certain specific requirements are met. This Legal Briefing details many of these existing OSHA COVID-19 recording and reporting obligations.
Recording of COVID-19 on OSHA Forms
In 2020, OSHA issued enforcement guidance for recording COVID-19 cases, which can be found here: Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) | Occupational Safety and Health Administration (osha.gov). This current enforcement guidance (which has been in effect since May 26, 2020) clarifies that employers must record cases of COVID-19 if the following three (3) elements are present:
The case is a confirmed COVID-19 case, as defined by the Centers for Disease Control and Prevention (“CDC”);
The case is “work-related” as defined by regulation (29 CFR 1904.5); and
The case involves one or more of the general recording criteria in the regulations (29 CFR 1904.7).
OSHA is clear in its enforcement guidance that employers with 10 or fewer employees and some employers in low hazard industries have no recording obligations but still must report work-related COVID-19 illnesses that result, for example, in death or in-patient hospitalization (or other applicable events).
Recording Elements #1 and #2
With respect to the three (3) elements above, while a confirmed COVID-19 case can be determined by testing to satisfy element #1, the determination of whether a COVID-19 case is “work-related” in order to satisfy element #2 is more complicated. An employer is required to make a reasonable determination of work-relatedness by applying the following considerations:
(a) The reasonableness of the employer’s investigation into work-relatedness:
Employers should, for example, ask the employee how he or she believes the virus was contracted; discuss work and outside activities with the employee; and review the work environment for potential COVID-19 exposure. Employers must be mindful of employee privacy concerns in the context of such an investigation.
(b) The evidence available to employer:
Any evidence that the COVID-19 case was work-related should be based on information reasonably available to the employer at the time it makes its determination. If new information is learned later, that should be taken into account as well.
(c) The evidence that the COVID-19 illness was contracted at work:
Employers should review all reasonably available evidence in order to satisfy its recording obligation. While there is no specific formula, OSHA has set forth some examples of evidence that may weigh in favor of or against work-relatedness, such as the following:
An employee’s COVID-19 confirmed positive case is likely work-related if the employee’s job duties involve frequent and close exposure to a customer or co-worker with a confirmed case and there is no alternative explanation.
An employee’s COVID-19 confirmed positive case is likely not work-related if the employee is the only one to contract COVID-19 in the employee’s vicinity and the employee’s job duties do not involve frequent contract with the general public, regardless of community spread.
Recording Element #3
The final element for purposes of determining whether to record the COVID-19 case is that it must involve one or more of the general recording criteria in the regulations. An employer must consider an illness to meet the general recording criteria if it results in any of the following:
Days away from work
Restricted work or transfer to another job
Medical treatment beyond first aid
Loss of consciousness
An employer must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician/licensed health care professional, even if it does not result in any of the bullet point items above.
With respect to the final determination whether to record the COVID-19 illness on the applicable OSHA Form (Form 300, etc.), pursuant to all applicable time frames, OSHA states the following in its guidance: “If, after the reasonable and good faith inquiry described above, 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.”
Reporting of COVID-19 under OSHA
In addition to the recording obligations in connection with COVID-19, employers have certain reporting obligations as well – in particular in cases where an employee has been hospitalized with a work-related, confirmed case of COVID-19 and in cases where an employee has died of a work-related, confirmed case of COVID-19.
In order to be reportable, an in-patient hospitalization as a result of COVID-19 must occur within twenty-four (24) hours of an exposure to COVID-19 at work. Therefore, if an employer discovers an employee has an in-patient hospitalization within twenty-four (24) hours of a work-related incident – and determines the cause was a work-related case of COVID-19 – this case must be reported by the employer within twenty-four (24) hours of such a determination.
In order to be reportable, a death due to COVID-19 must occur within thirty (30) days of an exposure to COVID-19 at work. Therefore, if an employer discovers an employee has died within thirty (30) days of a work-related incident – and determines the cause was a work-related case of COVID-19 – this case must be reported by the employer within eight (8) hours of such a determination.
Such reports should be made by calling the applicable local/regional OSHA office; utilizing the OSHA hotline at 1-800-321-6742; or through an online submission. Here is a hyperlink to further information on how to report to OSHA: Report a Fatality or Severe Injury | Occupational Safety and Health Administration (osha.gov).
With a new focus by the Biden Administration on OSHA guidance and compliance, there is likely to be an increase in investigatory and enforcement activity by the agency. Employers may in the near future face enhanced monetary fines and penalties for failing to comply with all updated requirements, including those detailed in this Legal Briefing.
Our Firm has extensive experience counseling employers and businesses on issues resulting from the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19 reopening rules and procedures, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.
This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Offices of Pullano & Farrow PLLC