On Sept. 30, 2020, the U.S. Occupational Safety and Health Administration (OSHA) issued guidance clarifying employers’ obligations to report COVID-19 cases resulting in hospitalization or death. Under the new guidance, employers must promptly report hospitalizations and fatalities caused by workplace exposure if they determine the in-patient hospitalization occurred within 24 hours of the workplace exposure or the fatality occurred within 30 days of the exposure.
Report Hospitalizations Within 24 Hours
The OSHA guidance clarifies that employers have 24 hours to report in-patient hospitalizations caused by COVID-19. To be reportable, the hospitalization must occur within 24 hours of the employee’s exposure to SARS-CoV-2 in the workplace. The reporting clock starts when the employer “know[s] both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19.”
The guidance implies that to make reporting decisions, employers must first determine whether a COVID-19 case is work-related. OSHA has not, however, explained how employers should make such determinations for reporting purposes. Accordingly, employers should apply the same principles which OSHA previously articulated for determining work-relatedness for recording on OSHA logs. In that guidance, issued May 19, 2020, OSHA tells employers how to determine whether a workplace exposure “more likely than not” caused the employee to contract COVID-19.
In practice, the 24-hour window between exposure and hospitalization should allow employers to avoid reporting COVID-19 hospitalizations except in rare circumstances. That should be true because, according to the Centers for Disease Control and Prevention (CDC), individuals typically experience symptoms five days after infection. Although the CDC also says symptoms may appear as early as two days after infection, employees rarely are hospitalized within 24 hours of exposure.
Report Fatalities Within Eight Hours
OSHA’s new guidance also requires employers to report COVID-19 fatalities within eight hours, provided the death occurs within 30 days of the employee’s work-related exposure. The employer’s eight-hour reporting clock starts once the employer “know[s] both that the employee has died, and that the cause of death was a work-related case of COVID-19.”
Again, in the absence of specific direction from OSHA, it would be advisable for employers to apply a “more likely than not” test to determine whether the employee contracted COVID-19 due to exposure at the workplace.
In sum, OSHA’s guidance provides simple reporting rules that should reduce employers’ reporting burdens. However, employers should bear in mind that some states in which they operate (e.g., California) may have stricter COVID-19 reporting requirements than those in the federal rules.
For assistance addressing the unique issues raised by COVID-19 or OSHA issues generally, please reach out to your McGuireWoods contact, the authors or any other members of the McGuireWoods labor and employment group.
McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.