Josh Schultz, Esq.
New OSHA Policy Narrows Test for Reporting COVID Hospitalizations
On September 30, 2020, OSHA issued guidance clarifying an employer's obligation to report COVID-19-related hospitalizations. The agency published a new set of Frequently Asked Questions (FAQ), clarifying the meaning of the term “incident” as it relates to work-related coronavirus in-patient hospitalizations and fatalities. In the new FAQ, OSHA states that for cases of COVID-19, the term “incident” means an exposure to SARS-CoV-2 in the workplace. OSHA regulations, at 29 CFR 1904.39(b)(6), require employers to report in-patient hospitalizations to OSHA only if the hospitalization “occurs within 24 hours of the work-related incident.” For employers, this means that they are only obligated to report in-patient hospitalizations to OSHA due to COVID-19 if the hospitalization occurs within 24 hours of an exposure to SARS-CoV-2 at work.
OSHA’s FAQ further clarified that employers have 24 hours to report from the time the employer determined that an employee was in-patient hospitalized due to COVID-19. “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.”
The September 30th FAQ is also clear that the reporting limitation applies only to OSHA's immediate reporting requirements; employers must still record work-related confirmed cases of COVID-19, as required by 29 CFR 1904.4(a), on OSHA’s Form 300.
In an April Enforcement Memo, OSHA stated that the agency would not enforce the recording and reporting requirements against employers (other than those in the healthcare industry, emergency response organizations, and correctional institutions) with respect to COVID-19 unless (1) there is objective evidence that a COVID-19 case may be work-related (i.e., a number of cases developing among employees who work closely together without an alternative explanation), and (2) the evidence was reasonably available to the employer. The memo listed examples of "reasonably available evidence" as information given to the employer by employees, and information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.
Additionally, OSHA published an FAQ on July 15 interpreting the hospitalization reporting requirement of 29 CFR 1904.39(b)(6). This FAQ required that employers “must report the hospitalization within 24 hours of knowing both that the employee has been hospitalized and that the reason for hospitalization was COVID-19.” However, OSHA subsequently removed the FAQ from the agency's website.