Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On September 30, 2020, the Occupational Safety and Health Administration (OSHA) released new Frequently Asked Questions (FAQs) regarding an employer’s obligation to report to OSHA cases of work-related COVID-19. The FAQs build upon previous OSHA guidance governing when and how to record and report confirmed positive cases of COVID-19 in the workplace.
Since the beginning of the COVID-19 pandemic, employers have had a number of questions regarding the recordability and reportability of COVID-19 cases. OSHA has stated that employers must record and report work-related cases of COVID-19 if the cases otherwise meet the recording and reporting criteria in the regulation. With respect to reporting a work-related positive case of COVID-19, that obligation occurs when the case results in (1) an in-patient hospitalization within 24 hours of a work-related “incident,” and (2) a fatality within 30 days of a work-related incident.
Until now, OSHA had not stated what should be classified as an “incident” in the case of COVID-19, which would trigger the time period for calculating whether a case meets the reportability criteria. In the new FAQs, OSHA states that the term “incident” means “an exposure to SARS-CoV-2 in the workplace.” An “incident” is thus when an employee is exposed to the virus at work, as opposed to when the employee develops symptoms, or tests positive. As OSHA explains with respect to in-patient hospitalizations:
. . . in order to be reportable, an in-patient hospitalization due to COVID-19 must occur within 24 hours of an exposure to SARS-CoV-2 at work. The employer must report such hospitalization within 24 hours of knowing both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19. Thus, 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.
OSHA emphasizes that this interpretation applies only to the reporting of COVID-19 cases. “Employers who are required to keep OSHA injury and illness records must still record work-related in patient hospitalizations and fatalities,” as required by other provisions of the regulation.
Employers should take note of this new interpretation as it provides greater clarity regarding when reporting obligations are triggered.