OSHA Requirments

OSHA AND CAL/OSHA RECORDING AND REPORTING REQUIREMENTS

Most employers with 10 or more employees are required to record certain injuries or illnesses under OSHA and Cal/OSHA. Even if a business is exempt from the record-keeping requirement, all employers must report certain serious injuries or illnesses. To determine which employers are subject to record keeping under OSHA, see https://www.osha.gov/recordkeeping/ and under Cal/OSHA, https://www.dir.ca.gov/dosh/etools/recordkeeping/index.html.

When employers record injuries and illnesses, the information usually is reported to OSHA or Cal/OSHA only as statistics. Either agency may request additional information. In California, covered injuries and illnesses are recorded on Form 300 –– Log of Work-Related Injuries and Illness. An in-depth review of OSHA and Cal/OSHA reporting requirements is beyond the scope of this guide. Employers are encouraged to review the OSHA and Cal/OSHA websites for further details on record keeping and reporting.

It's not easy to determine whether COVID-19 must be recorded or reported, as clear guidance has not emerged and it can be impossible to know if someone contracted the virus at the workplace.

RECORDABLE INCIDENTS

Cal/OSHA and OSHA agree that employers must record cases of COVID-19 only if all of these apply:

• The case is confirmed as COVID-19.
• The case is work related, as defined by 29 C.F.R. § 1904.5.
• The case involves one or more of the general recording criteria defined in 29 C.F.R. § 1904.7 (that is, medical treatment beyond first aid, or days away from work).

Cal/OSHA follows OSHA guidelines with respect to when COVID-19 is considered to be a confirmed case –– when an individual has at least one respiratory specimen that tested positive https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.

An illness is work related “if an event or exposure in the work environment either caused or contributed to the resulting condition ....” The regulation defines several exceptions for illnesses that occur in the work environment, but are not work related. One notable such exception is an illness that “involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment” –– such illness is not recordable. But determining where, when and how an individual contracted COVID-19 is nearly impossible, and Cal/OSHA does not provide clear guidance.

For cases in which “it is not obvious whether the precipitating event or exposure occurred in the work environment or occurring away from work,” the employer “must evaluate the employee’s work duties and environment” to determine work relatedness. That means employees in a high-risk environment –– a hospital or first response agency –– are more likely to become infected through work than an office worker who is teleworking. If multiple employees contract the illness, of course, it's more likely that the infection was contracted at work.

On May 19, OSHA issued updated guidance to assist employers' investigations into whether the illness is work related. Link here for the full text of the guidance. In determining whether an employer complied with its recording requirements, OSHA considers the reasonableness of its investigation into work relatedness. The guidance recognizes that employers don't know everything about their employees and are not medical experts, and recommends that they follow these steps when they learn of a COVID-19 case:

1. Ask the employee how he or she believes they contracted the illness.
2. Discuss with the employee, mindful of privacy concerns, the activities both inside and outside of work that may have led to the illness. And
3. Review the employee's work environment for potential COVID-19 exposure.

The workplace review will focus mainly on the number of workers who have contracted COVID-19. OSHA also will investigate whether the employer has implemented and enforced policies and practices to address the spread of the disease in the workplace, including whether the employer considered guidance issued from the CDC. OSHA will consider information and evidence readily available to the employer when it made the determination of work relatedness. If the employer later learns more information about the employee's illness, OSHA may consider this information to evaluate whether the employer made a reasonable work-relatedness determination.

OSHA will look at different types of information that might show that the illness is or is not work related. Examples of likely work relatedness include:

• Several workers develop the illness who work closely together and there is no other explanation.
• The illness is contracted shortly after a lengthy, close exposure to a particular customer, vendor or co-worker who has a confirmed case and there is no other explanation.
• The employee's job duties include frequent, close exposure to the general public in a place where there is ongoing community transmission and there is no other other explanation.

Examples of nonwork relatedness include:

• The employee is the only worker in the vicinity to contract the illness and the employee's job duties don't include frequent contact with the public.
• Outside the workplace, the employee closely and frequently associated with someone who has COVID-19 and who is not an employee.

Finally, OSHA will review evidence of causation from the employee, the employee's health-care providers and public health authorities when such information is available.

If, after making a reasonable inquiry under the factors outlined above, an employer cannot determine if it's more likely then not that the COVID-19 illness is work related, the employer needn't record it. The key for employers is to conduct a reasonable, thorough and objective evaluation of work relatedness, then to make the appropriate determination.

Practice Tip: Employers should document the steps they took to investigate work relatedness to ensure that they reviewed:

1. the employee's explanation of where he or she thought the illness might have been contracted;
2. current illness in the workplace, especially in the employee's work area;
3. populations (general public) and individuals (customers, vendors, suppliers, etc.) with whom the employee regularly had contact prior to developing the illness;
4. the effectiveness of the company's health and safety policies; and
5. if and how the virus is spreading within the community.

Practice Tip: A thorough investigation could help limit exposure in subsequent unsafe workplace allegations, and limit the employer's workers' compensation exposure.

REPORTABLE INCIDENTS

Cal/OSHA requires that employers report by telephone within eight hours "any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment." Cal/OSHA defines "serious injury or illness" as "any injury or illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing...." The critical inquiry for reporting purposes is whether COVID-19 was contracted "in a place of employment or in connection with any employment" and, for reporting purposes, required "inpatient hospitalization."

Given the confusing and conflicting guidance, a prudent California business should make the telephone report, or at least seek advice from a Cal/OSHA intake officer about whether the infection is reportable. Deciding if the illness was work related has far-reaching consequences, so the decision should be made in consultation with an experienced OSHA attorney and/or a workers’ compensation attorney. By taking some action, a California business might avoid an OSHA citation or penalties.

POTENTIAL CONSEQUENCES OF NONCOMPLIANCE WITH OSHA AND CAL/OSHA REQUIREMENTS

OSHA and Cal/OSHA have inspection and audit rights, and also the authority to impose significant penalties. They can even shut down a business. These are all possible consequences of noncompliance:

• OSHA and Cal/OSHA inspections resulting from employee complaints or reports of serious illness or injury (possibly including multiple incidents of workplace COVID-19);
• stop-work orders and red tags if an inspection finds imminent hazards;
• Cal/OSHA monetary penalties of more than $10,000 without penalty enhancements for a "serious" citation;
• criminal liability (See https://www.dir.ca.gov/dosh/Enforcementpage.htm).

Civil lawsuits brought by employees for unsafe working conditions or retaliation for making health and safety complaints also might result from an employer's failure to take seriously its responsibility to assess risk, determine best practices to protect the health and safety of employees and implement effective policies and practices.

RETALIATION IS PROHIBITED

The COVID 19 pandemic probably will prompt an uptick in workplace health and safety complaints. Employers should be cautious in how they respond to such employee actions. Taking adverse action against any employee because he or she made a health and safety complaint could be considered retaliatory.

Employees who make a good-faith oral or written complaint about their workplace safety to the employer, the employee’s representative (a union rep) or governmental agencies are protected from retaliation even if the complaint turns out to be unfounded.

Practice Tip: Employers should consider how they respond to an employee who wants to stay home because he or she fears that the workplace is unsafe. If you believe that you have implemented policies and procedures that comply with OSHA, Cal/OSHA and CDC guidelines, you may choose to tell the employee that the leave is not authorized. But do so with caution. If you are uncertain that your policies and procedures are fully compliant with federal and state guidelines, you might want to approve the absence. If you grant one employee's request, however, you might be required to grant all such requests. Granting the employee’s request to stay home might be the best response, especially if the workplace has a high risk of exposure, multiple employees have contracted COVID-19 and/or the individual making the request is at higher risk of developing complications from the illness.