OSHA Updates Employer Rules for Reporting COVID-19 Fatalities

On September 30, 2020, the Occupational Safety and Health Administration (OSHA) published answers to frequently asked questions concerning an employer’s obligation to report hospitalizations and fatalities resulting from work-related cases of COVID-19. Since the early days of the pandemic, OSHA has been consistently releasing statements and updates concerning issues pertaining to COVID-19 in the work environment. The regulatory agency has become a source of valuable guidance in navigating workplace safety issues in the age of a public health crisis. Whether you are an employer or employee, it is critical to stay apprised of any requirements and rights created by OSHA, particularly in light of its legal implications.

Updated Timeframes for COVID-19 Reporting

Exposure to COVID-19 in the workplace has been an issue with which industries across the board have been grappling, especially in terms of contact tracing or otherwise documenting those who have been exposed or tested positive. OSHA’s updates have clarified the requirements of employers on this front, which are similar to the general reporting requirements for all work-related incidents. According to OSHA, employers must report all employee fatalities that occurred within 30 days of the employee’s exposure to COVID-19 at work. The employer has eight hours to report the fatality to OSHA upon learning of the fatality and that the cause of death was work-related.

Employers are also required to report an employee’s hospitalization if it occurred within 24 hours of the “work-related incident.” Unlike the reporting requirement regarding fatalities, reporting is only required when the employee is hospitalized within 24 hours of COVID-19 exposure in the workplace. Employers have 24 hours after being notified of the hospitalization to report it to OSHA. A hospitalization or fatality is “work-related, as defined by 29 C.F.R. § 1904.5, if “an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.”

OSHA’s Report Requirements

Employers must provide certain information in their reports, including the employee’s name, the location and time of the exposure, and a brief description of the facts and circumstances surrounding the incident. OSHA also requires contact information so that it can conduct any follow-up. Failing to file a timely report may result in the employer being issued citations and fines by OSHA.

Prior to these recent updates, OSHA had previously revised their enforcement guidance in May, detailing how it will enforce recordkeeping requirements under 29 C.F.R. § 1904 for COVID-19-related illnesses. The guidelines clarified that COVID-19 is a recordable illness, and thus, employers are responsible for recording cases if they meet certain requirements, namely, that the case is confirmed, work-related, and involves one or more of the general recording criteria set forth in 29 C.F.R. § 1904.7. A case is considered recordable if it results in “death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.”

Future Employment Litigation

As a tidal wave of workplace COVID-19 exposure lawsuits is predicted in the near future, OSHA requirements and guidelines will play an important part in these cases. If an employee (or the employee’s family) is suing an employer after contracting COVID-19 through the workplace, they must prove that the employer acted negligently, or breached their duty of care. Whether an employer fulfilled their duties and took reasonable measures to protect employees from the spread of COVID-19 will depend on a number of factors—many of which can be found in OSHA regulations. An employer’s breach (or fulfillment of) an OSHA regulation can prove (or defend against) a negligence allegation. Although certain OSHA guidance is not a standard or regulation, and thus, creates no legal obligation, it still provides instructive information for determining whether an employer acted reasonably and within the confines of the law.

The biggest challenge in workplace exposure lawsuits by far is proving that the virus was, in fact, contracted at work. OSHA’s guidelines provide factors that should be considered when determining work-relatedness, such as if several cases were developed among employees that work closely together; if the employee’s duties include frequent contact to the general public, or if the employee has alternative explanations for the contraction. Because OSHA continues to modify and tailor their rules to COVID-19, it is important for employers and employees to remain up-to-date and monitor any changes.