January 15, 2021

When is a COVID Case Work-Related? – OSHA Revised Reporting & Recording Rules

What happened?

Towards the end of 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) updated its Frequently Asked Questions (“FAQ”) regarding employers’ reporting obligations during the COVID-19 pandemic.  The update re-defined a “work related incident,” which requires the employer to report the incident to OSHA, as “an exposure to SARS-CoV-2 in the workplace.”  Under this current definition employers are responsible for recording workplace cases of COVID-19 on an OSHA 300 Log if the case:  (1) is confirmed COVID-19; (2) results from events or exposures occurring in the work environment; and (3) involves one or more of the general recording criteria of death, days away from work, medical treatment beyond first aid, or loss of consciousness.  Moreover, employers must report to OSHA any work-related fatalities or hospitalizations due to COVID-19.

Why you need to know about this?

The deadline for employers to file their required Forms 300 and 301 with OSHA is March 2, 2021.  Since May 26, 2020, OSHA has declared COVID-19 a recordable illness for all employers if the virus was contracted in a work-related incident.  Employers are responsible for conducting the work-related analysis.  In making that determination, Employers may ask the infected employee how they believe they contracted COVID-19 as well as inquire about at-work and out-of-work activities that may have led to the illness.  It is critical that employers respect the employee’s privacy in conducting the work-related analysis. Employers should also review the employee’s work environment for potential sources of exposure.  There is a rebuttable presumption that COVID-19 exposure was work-related.  If an employer determines the COVID-19 case is not work-related, then the employer need not record the illness, but must keep its “work-relatedness” analysis in case questioned or investigated by OSHA at a later date.

What should you do now?

Employers should immediately consult experienced counsel familiar with OSHA’s new reporting guidelines to ensure that mistakes or omissions were not made for prior infections.  Employers should also put a plan in place to ensure compliance with federal OSHA requirements including: (1) evaluating the work-relatedness for any COVID-19 case in the workplace and maintain the analysis in event of an OSHA-audit; (2) record COVID-19 confirmed work-related cases on an OSHA 300 Log; and (3) report to OSHA any work-related COVID-19 fatalities and hospitalizations, and pay particular attention to the new timing requirements.  Employers must also comply with state OSHA requirements to avoid fines such as the multi-thousand-dollar fines recently issued by OSHA for failure to comply with reporting and recording requirements.

To get the answers to your questions, develop a proper OSHA reporting and recording plan and avoid violating OSHA’s regulations contact Hyland Levin Shapiro’s employment practice group.