OSHA Requirements — Recording and Reporting COVID-19
From Navigating COVID-19
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- 1 Summer 2021 –– OSHA updates guidance on protecting health-care workers and issues guidance for other workers
- 2 Mandatory Emergency Temporary Standard for Health Care Workers
- 3 Requirements of the ETS for Healthcare Workers
- 4 Guidance for Protecting Workers Outside of the Healthcare Industry
- 5 Cal/OSHA may shut down a workplace that creates an imminent hazard
- 6 OSHA will inspect high-risk employers for COVID-19 compliance
- 7 OSHA and Cal/OSHA recording and reporting requirements
- 8 Recordable incidents
- 9 Reportable incidents
- 10 Compare presumption and provision of a claim form
- 11 Potential consequences of noncompliance with OSHA and Cal/OSHA requirements
- 12 Retaliation is prohibited
- 13 OSHA withdraws recordable and reportable FAQs
- 14 See Also
- 15 References
Summer 2021 –– OSHA updates guidance on protecting health-care workers and issues guidance for other workers
The federal Occupational Health and Safety Administration (OSHA) issued additional guidance to employers on how to protect workers from the ever-mutating COVID-19 virus. California's corollary agency, Cal/OSHA, also renewed its guidelines. When laws, regulations, or guidelines issued by both federal and state governments address the same issues, California employers are required to follow the directives that provide the greatest protection for employees. California laws usually favor employees. But employers in this state should be familiar with the following OSHA guidance if they have operations in other states.
Mandatory Emergency Temporary Standard for Health Care Workers
On June 21, 2021, OSHA's Emergency Temporary Standard (ETS) for health-care employees became effective. The health-care ETS apply, with some exceptions, where any employee provides health care or health-care support services. The ETS are aimed at protecting workers facing the highest COVID-19 hazards –– those working where suspected or confirmed cases of COVID-19 are treated. Such workers include:
- employees in hospitals, nursing homes, and assisted living facilities
- emergency responders
- home health-care workers
- employees in ambulatory care facilities where suspected or confirmed cases of COVID-19 are treated.
The ETS does not apply to:
- first aid performed by an employee who is not a licensed health-care provider;
- pharmacists who dispense prescriptions in retail settings;
- employees of ambulatory care operations not based in a hospital if all nonemployees are screened before entering, and people with suspected or confirmed COVID-19 are not permitted; employees of discrete hospital ambulatory care operations if all employees are fully vaccinated and all nonemployees are screened before entering, and people with suspected or confirmed COVID-19 are not permitted;
- employees in home health-care settings if all employees are fully vaccinated and all nonemployees are screened before entering, and people with suspected or confirmed COVID-19 are not present;
- employees of health-care support services not performed in a health-care setting (for example, off-site laundry, off-site medical billing); and
- employees of telehealth services performed in facilities with no direct patient care. (The ETS apples only to employees working in a health-care setting, not in a remote physical location.)
Requirements of the ETS for Healthcare Workers
The material below is specific to the federal guidelines (OSHA) issued over the summer of 2021. Readers interested in the corollary state guidelines that usually control (Cal/OSHA) can review the section of this guide called Cal/OSHA Imposes COVID-19 Safety Regulations on Businesses.
Employers must develop and implement a plan for each workplace. Any work site with more than 10 employees must have a written plan on the premises. Such plans must:
- Designate a workplace safety coordinator knowledgeable in infection control principles and practices. This person (or persons) has authority to implement, monitor, and ensure compliance with the plan.
- Conduct a workplace-specific hazard assessment.
- Seek the input and involvement of nonmanagerial employees and their representatives in plan development/implementation and hazard assessment.
- Monitor each workplace to ensure the ongoing effectiveness of the plan, updating it as needed.
- Include policies and procedures to minimize the risk of transmission of COVID-19 to employees.
Many elements of an employer's plan will seem familiar from guidelines issued previously by various local and state entities.
Health-care work sites
Businesses engaged in health-care and affiliated services must limit and monitor points of entry anywhere direct patient care is provided. They must screen people for for symptoms of COVID-19, and triage patients, clients, residents, delivery people, and other visitors/nonemployees. In general, such concerns must continue to implement patient management strategies with which most have become familiar, and many elements of a health-care plan also pertain to other industries.
Health-care concerns must develop and implement policies and procedures that adhere to what the feds refer to as Standard and Transmission-Based Precautions. They include providing:
- personal protective equipment (PPE);
- facemasks, and ensuring they are worn over the nose and mouth when employees are indoors and when they occupy a vehicle with other people for work purposes;<.li>
- respirators and other PPE for exposure to people with suspected or confirmed cases of COVID-19 and for aerosol-generating procedures on a person with a suspected or confirmed case of COVID-19.
Employers also must allow the voluntary use of respirators instead of facemasks. When aerosol-generating procedures are used on people with suspected or confirmed cases of COVID-19, employers must limit the number of employees involved to only those who are essential. They must ensure that such procedures are performed in an airborne infection isolation room, if available. After the procedure is complete, they must clean and disinfect surfaces and equipment.
In more general terms of ventilation, employers that own or control their HVAC system must ensure that they're used in accordance with manufacturer’s instructions and design specifications. Air filters should be rated as Minimum Efficiency Reporting Value (MERV) 13, or higher if the system enables it. Airborne infection isolation rooms should be maintained and operated in accordance with their design and construction criteria. Intake ports should be cleaned, maintained, and cleared of debris.
Other practices delineated in the new OSHA guidelines are also familiar to many employers and employees, whether their jobs involve patient-based health services or not. They include:
- screening each employee before each work day and shift (for example, by asking employees to self-monitor);
- providing employer-required testing at no cost to the employee (note: employers are not required to conduct screening testing);
- requiring each employee to promptly notify the employer when he or she tests positive for COVID-19, is suspected of having COVID-19, or is experiencing certain symptoms;
- notifying certain employees within 24 hours when a person who has been in the workplace tests positive for COVID-19
- following the requirements for removing workers from the workplace;
- making decisions on returning employees to work in accordance with guidance from a licensed health-care provider or specified CDC guidance;
- continuing to pay removed employees in most circumstances;
- providing reasonable time and paid leave for vaccinations and vaccine side effects;
- physical distancing from all other people by at least 6 feet when indoors;
- installing physical barriers at each fixed work location in areas apart from patient care where employees are not physically distanced that can be cleaned or are disposable;
- cleaning and disinfecting surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment;
- cleaning areas outside of patient care with high-touch surfaces/equipment at least once daily;
- providing hand sanitizer of at least 60% alcohol and/or readily accessible handwashing facilities.
The Emergency Temporary Standard requires that health-care providers and related services must ensure that their workers are properly trained in COVID-19 protocols in a language and at a literacy level they understand. Such employees must comprehend aspects of disease transmission, tasks, and situations in the workplace that could result in COVID-19 infection, and the relevant policies and procedures to address it. Employers must ensure that each employee receives additional training when changes occur that affect his or her risk of infection; if policies or procedures are changed; and/or when there is an indication that an employee has not retained necessary information or developed necessary skills.
If you are a health-care employer and believe that OSHA's health-care work site Emergency Temporary Standard applies to you, OSHA has a helpful flowchart to determine whether your organization must comply with its provisions. In addition, the website has useful forms, plans, and templates for health-care employers to implement mandatory ETS requirements.
Employers must not retaliate against workers who exercise their rights
Employers are obliged to inform their employees of their rights to the protections required by this standard. Per29 CFR § 1910.502(o), they must not discharge nor in any manner discriminate against employees for exercising these rights or for engaging in actions required by the standard.
Keeping records and reporting COVID-19 fatalities and hospitalizations to OSHA
The ETS directs employers with more than 10 employees to establish a COVID-19 log to record all employee cases of COVID-19 without regard to occupational exposure. Employers also are obliged to make such records available to their employees.
Employers must report to OSHA each work-related COVID-19 fatality within eight hours of learning about it. They also must report each work-related COVID-19 in-patient hospitalization within 24 hours of learning it.
Guidance for Protecting Workers Outside of the Healthcare Industry
On Aug. 13, 2021, OSHA issued guidelines for employers whose businesses are not involved with health care. According to an agency statement, the guidance is designed to help employers protect workers who are unvaccinated (including people who are not fully vaccinated) or otherwise at risk. That population includes workers who are immunocompromised, and those who are fully vaccinated but are located "in areas of substantial or high community transmission."
Most employers will recognize the similarity between the following OSHA recommendations below and Cal/OSHA's ETS, issued and effective June 17, 2021. It is discussed in this book's section Cal/OSHA imposes COVID-19 Safety Regulations on Businesses. In California, most employers should adhere to Cal/OSHA's standards, which are more stringent and mandatory. This summary of OSHA guidance is suggestive, and primarily for informational purposes.
What workers need to know
OSHA advises workers on how to protect themselves against exposure to and transmission of COVID-19. The agency encourages vaccination and employer-mandated COVID-19 prevention programs, precautions, and policies at the workplace. It recommends that all employees, whether vaccinated or not, wear a mask in public indoor settings if they are in an area of substantial or high transmission. OSHA does not define what it considers to be criteria for "areas of substantial or high transmission."
What employers need to know
OSHA recommends that employers engage with workers and their representatives to determine how to implement multi-layered interventions and how to protect unvaccinated and otherwise at-risk workers from the spread of COVID-19. Such measure should include:
- Facilitate employee vaccinations. OSHA suggests that employers grant paid time off for employees to get vaccinated and recover from any side effects, or work with local health officials to provide vaccinations on-site. OSHA also suggests that employers mandate that workers get vaccinated, or require regular them to be tested regularly.
- Instruct infected workers or workers with symptoms to stay home. Fully vaccinated employees with a known exposure should get tested three to five days after exposure, and should wear a mask in public indoor settings for 14 days or until they test negative. Unvaccinated workers or workers who are not fully vaccinated with a known exposure should be tested immediately (especially when symptoms develop) and, if negative, tested again in five to seven days after the last exposure.
- Implement physical distancing in all communal work areas for unvaccinated and at-risk workers. OSHA also recommends limiting the number of employees working or communing in one place. (For example, staggering rest and meal breaks, working remotely, implementing flexible meeting options.) If physical distancing isn't possible (for example, in fixed workstations) employers should install transparent shields or barriers.
- Provide workers with face coverings, surgical masks, or respirators. OSHA recommends directing unvaccinated workers to wear a face covering in public indoor settings and any area of substantial or high risk of transmission. Fully vaccinated workers should be allowed to wear face coverings in indoor public settings. Employers should provide face coverings or other PPE at no cost to their employees. Workers need not wear face coverings outdoors unless they chose to do so.
- Educate and train workers on COVID-19 policies and procedures. Employers should communicate their COVID-19 prevention plans, precautions, and policies in languages workers understand. Training should be directed to employees, contractors and others on-site, and should include basic facts about COVID-19, how it spreads and the importance of physical distancing, ventilation, vaccines, hand hygiene, and the employer's workplace policies that protect workers from COVID-19.
- Suggest or require that unvaccinated customers, visitors, and guests wear face coverings in public-facing workplaces, and wear face covering in public indoor settings in areas of substantial or high transmission.
- Maintain ventilation systems.
- Clean and disinfect routinely.
- Record and report COVID-19 infections and deaths.
- Implement protections from retaliation and set up an anonymous process for workers to report COVID-19 hazards.
Measures for higher-risk workplaces with mixed vaccination-status workers
OSHA suggests additional steps employers should take in high-risk environments, particularly in areas of substantial or high transmission. High-risk environments include where employees must work in close proximity; when the duration of contact is high; where workers cough and sneeze in confined, close spaces; where employees share transportation; and where communal housing is common. Higher-risk workplaces include:
- meat, seafood, and poultry processing
- high volume retail and grocery
- agricultural processing
In high-risk workplaces, employers also should:
- Stagger break times or provide temporary break areas to prevent groups congregating,
- Stagger arrival and departure times.
- Provide visual cues (such as floor markings and signs) to remind employees to physically distance.
- Require unvaccinated or otherwise at-risk employees and vaccinated employees in areas of substantial or high transmsission areas to wear face coverings.
- Customize ventilation to improve air flow in the workplace.
- Require or encourage customers, guests, and visitors to wear face coverings.
Employers might want to review OSHA's FAQs related to the newly issued ETS.
Cal/OSHA may shut down a workplace that creates an imminent hazard
As codified in LC 6409.1, AB 685 expands and clarifies Cal/OSHA’s authority to shut down workplaces or operations when it finds an imminent hazard due to COVID-19 exposure risk. If the agency finds that a workplace, operation or process exposes employees to a risk of COVID-19 infection and creates an imminent hazard to employees, it may prohibit entry to the workplace and may shut it down through the issuance of "Orders Prohibiting Use" (OPU).
Imminent hazard: Per Cal/OSHA, this is "any condition or practice which poses a hazard to employees, which could reasonably be expected to cause death or serious physical harm immediately, or before the imminence of such hazard can be eliminated through normal enforcement procedures."
Cal/OSHA inspections might result in citations with monetary penalties. The citation classifies each violation based on the severity of the hazard. Citations are classified as serious when Cal/OSHA demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. The agency immediately may shut down facilities, departments, operations or processes that, in its opinion, create an imminent hazard to employees.
If Cal/OSHA exercises that authority, it must provide the employer with notice of the action and post that notice in a conspicuous place at the work site. Restrictions must be limited to the immediate area of risk and may not prohibit entry to or operation of other areas, operations or processes that don’t pose imminent hazards.
Reduced Notice Periods for Issuance of Serious Violation Citations Related to COVID-19: Typically, Cal/OSHA must provide an employer 15 days' notice of its intent to issue a serious violation citation. It also must provide the employer the opportunity to respond and rebut the proposed citation before issuance. Employers can prevent the issuance of the citation by providing timely response and rebuttal.
AB 685 modifies Cal/OSHA’s notice requirements to employers when issuing a serious violation citation related to COVID-19 risk. The agency is not obligated to provide 15 days' notice and may issue the serious violation citation immediately. The employer will still be able to contest the citation through existing Cal/OSHA appeal procedures, but may not prevent the issuance of the citation by rebuttal. Employers must determine immediately when and whether an appeal should be filed, as they won’t have the opportunity to negotiate with Cal/OSHA prior to the issuance of a serious violation citation. See the procedure for the issuance of an OPU.
Cal/OSHA’s expanded authority under AB 685 expires on Jan. 1, 2023.
Recommendations to Businesses
We anticipate that the new rule will require employers to have a COVID-19 action plan that identifies risks and determines how to control exposure through actions such as using protective gear, social distancing, and improving ventilation.
Employers are wise to draft and implement a separate COVID-19 pandemic plan distinct from its injury and illness prevention plan. The COVID-19 plan should address exposure risks, the manner in which the employer will correct the risks and how it will enforce procedures, such as through training, inspections, and review of processes for effectiveness. Moreover, it must be tailored to the employer's specific business, taking into account working conditions, whether workers are on-site or off-site, whether the business deals with the public, and how disinfection, PPE, and social distancing will be used to help keep employees safe. The plan also should specify how employees will be notified of exposure risk and what actions will be taken to disinfect and mitigate risk should there be a positive COVID-19 case at the work site.
Review CDC guidance on specific industries when developing a disinfection and safety plan. Remember, the plan must be tailored to specific industries and businesses. The CDC is a good place for employers to start drafting their own plans
OSHA will inspect high-risk employers for COVID-19 compliance
Under the Biden Administration, OSHA launched a national emphasis program (NEP) March 12, 2021 to protect high-risk workers from COVID-19. The program emphasizes investigations of employers who retaliate against employees who complain about unsafe working conditions.
The goal of this NEP is to significantly reduce or eliminate worker exposures to the coronavirus by targeting industries and work sites where employees may have a high frequency of close contact exposure, and to control the health hazards associated with such exposure. That involves a combination of inspection targeting, outreach to employers, and compliance assistance. OSHA's NEP can be found here.
The NEP program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them.
OSHA is forgoing the typical 90-day waiting period before initiating investigations; the NEP took effect immediately. It will remain in effect for as long as one year, but OSHA may amend or revoke it as the pandemic subsides.
Industries targeted for inspection
OSHA will target seven industries for inspection, all of which are characterized by close contact of workers. Industries targeted include, but are not limited to:
- Health care The health-care industry includes hospitals, doctors offices, dentists' offices, long-term care facilities, and home health-care services.
- Grocery and big box stores
- Temporary staffing agencies
- Full-service and fast food restaurants
- Food and beverage manufacturing
- Critical manufacturing This includes paper, chemicals, plastics, and metals
How companies will be targeted for inspection
OSHA will target specific businesses within the high-risk industries based on several factors including:
- complaints and referrals: allegations of potential worker exposures to coronavirus (for example, insufficient controls in place such as PPE), or involving workers suspected or confirmed positive for COVID-19, or with symptoms of exposure to the virus;
- review of injury and illness date, prior inspection findings, and inspection data: companies that have had frequent violations, injuries (including positive COVID-19 cases);
- random selection.
What is OSHA looking for in its inspections?
OSHA's inspections include (but are not limited to) confirmation that the employer is in compliance with all OSHA safety rules specifically related to COVID-19 prevention measures. It will inspect to determine if employers are complying with all safety requirements, including the use of face coverings and other PPE. OSHA is authorized to review records, interview employees and owners, and do on-site inspections of all parts of a facility. Employers should ensure that they have reviewed and implemented all OSHA safety requirements as found here.
OSHA has the authority to cite employers and shut them down for significant violations.
Recommendations for employers
Even if your business isn't in one of the high-risk industries targeted, it should prepare for a possible inspection triggered by an employee complaint.
California employers are subject to Cal/OSHA and OSHA requirements, and must comply with both agency's requirements. Proactively, employers should:
- Develop and implement a COVID-19 prevention program. (See the section Cal/OSHA Imposes Covid-19 Safety Regulations on Business, COVID-19 Prevention Program.)
- Identify a manager or administrator to handle OSHA and COVID-19 compliance.
- Train employees on how to prevent and reduce exposure and how to participate in the compliance effort.
OSHA and Cal/OSHA recording and reporting requirements
OSHA stands for Occupational Safety and Health Administration, a federal government agency. The corollary state Division of Occupational Safety and Health is known as Cal/OSHA. They hold employers to account for keeping a safe workplace. Generally, the requirements and standards of both agencies overlap, although Cal/OSHA is more expansive. But employers are regulated by both.
Most employers with 10 or more employees are required to keep a record of certain injuries or illnesses. Even if a business is exempt from the recording requirement, it must report certain serious injuries or illnesses. To determine which employers are subject to record-keeping, see OSHA and Cal/OSHA.
When employers record injuries and illnesses, the information usually is communicated 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 should 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 –– clear guidance has not emerged, and it might not be possible to know if someone contracted the virus at the workplace.
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 Code of Federal Regulations § 1904.5.
- The case involves one or more of the general recording criteria defined in 29 Code of Federal Regulations § 1904.7 (that is, medical treatment beyond first aid, or days away from work).
Is the case confirmed?
OSHA guidelines state that a COVID-19 case is considered to be a covered case when an individual has at least one respiratory specimen that tested positive. Cal/OSHA agrees with this guideline, but adds that if the case is not confirmed through testing it still might be considered a confirmed case if it is work related and results in:
- days away from work;
- restricted work or transfer to another job;
- medical treatment beyond first aid;
- loss of consciousness;
- significant injury or illness diagnosed by a physician or other licensed health-care professional.
See recently issued Cal/OSHA guidance. The guidance is clear that quarantining is not considered "days away from work" for recording purposes. Unfortunately, Cal/OSHA guidance doesn't define whether COVID-19 alone is a significant injury or illness for recording purposes. An employer would have to evaluate the facts of the individual case to make a determination. For example, if an employee becomes ill with a suspected case of COVID-19, quarantines for 14 days and returns to work, that is probably insufficient to determine if the illness was "significant."
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 help. For record-keeping purposes, a COVID-19 case is considered work related if there is a known exposure in one of these instances:
- exposure to people in the workplace known to be infected with coronavirus (which causes COVID-19);
- working in the same area where people carrying coronavirus were located;
- sharing tools, materials or vehicles with persons known to have been carrying coronavirus.
Cal/OSHA doesn't define what is meant by "exposure" to persons in the workplace. The CDC has guidance about community exposure that defines "exposure" to someone with a confirmed case of COVID-19 as close contact (fewer then 6 feet apart) for a period greater than 15 minutes. It's unclear whether Cal/OSHA would adopt such a definition or would consider "working in the same area" as people working within 6 feet of an affected person.
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. Factors employers should evaluate include:
- the type, extent and duration of contact the employee had at the work environment with other people, particularly the general public;
- physical distancing and other controls that affect the likelihood of work-related exposure;
- whether the employee had work-related contact with anyone who exhibits signs and symptoms of COVID-19.
Cal/OSHA makes clear an investigation is necessary to determine whether a case of confirmed or suspected COVID-19 infection is work related, which would invoke the recording requirement. The vagaries of Cal/OSHA guidance remind employers to take precautions in bringing employees back to work and supervising them in the workplace. Employers should develop policies and practices that protect employees from contracting the illness, including social distancing, use of PPE and enhanced hygiene practices. Effective implementation of these practices will support a determination that exposure didn't occur in the workplace.
On May 19, OSHA updated guidance to assist employers' investigations into whether the illness is work related. Cal/OSHA has no guidance on the sufficiency of the investigation process so, employers should follow OSHA's lead.
In determining whether an employer complied with its recording requirements, OSHA considers the reasonableness of the investigation into work relatedness. The agency 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:
- Ask the employee how he or she believes they contracted the illness.
- Discuss with the employee, mindful of privacy concerns, his or her activities both inside and outside of work that might have led to the illness. And
- Review the employee's work environment for potential COVID-19 exposure.
Employers should question employees about possible outside exposure immediately upon learning of a confirmed or suspected case. Contact tracing not only will assist employers in determining whether exposure was work related, it will also help them notify co-workers and others of potential 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 followed guidelines issued by 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 various sources of information that might show whether the illness is work related. Examples of likely work relatedness include:
- Several workers who work closely together develop the illness and there is no other explanation except proximity of co-workers.
- 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 than 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: A thorough and well-documented investigation could help defend against subsequent unsafe workplace allegations, and limit the employer's workers' compensation exposure.
Does the case involve one or more of the recording criteria?
Finally, to be recordable the confirmed, work-related COVID-19 case also must involve one of the factors noted above:
- days away from work;
- restricted work or transfer to another job;
- medical treatment beyond first aid;
- loss of consciousness;
- significant injury or illness diagnosed by a physician or other licensed health-care professional.
When all three criteria are met, recording is required.
In addition to their recording obligations, employers also are required to report certain work-related injuries and illnesses. The standard for reporting is significantly higher than the standard for recording. If a case is reportable it is also recordable, but not vice versa. Employers familiar with cases that are recordable but not reportable know that recording injuries and illness is more common than reporting injuries and illness.
Cal/OSHA requires employers to report any serious illness, serious injury or death of an employee that occurred in connection with work. The report must be made within eight hours of when the employer knew or should have known of the illness or injury..
Among other things, a serious illness includes fatalities, and any illness that occurs at work or in connection with work that requires inpatient hospitalization for reasons other than medical observation or diagnostic testing. To be reportable, the illness must be confirmed, work related and meet recording criteria as described above, and COVID-19 hospitalizations must be for the purpose of treatment for the illness..
Cal/OSHA has not been specific about the meaning or timing of an inpatient hospitalization, nor the timing of death, for purposes of reporting a COVID-19 case. OSHA regulations state that an inpatient admission must be reported only if the hospitalization occurs within 24 hours of the work-related incident. In addition, OSHA mandates that fatalities must be reported only if they occur within 30 days of the workplace incident. It's difficult to determine whether a COVID-19 transmission is work related, and, if it is, exactly when it became an "incident." So, COVID-19 transmission and disease progression could result in fewer COVID-19 reportable cases.
Cal/OSHA is clear that reporting a serious illness is not an admission that it is work related, nor is it an admission of responsibility. The guidance is silent as to whether merely recording an incident of suspected or confirmed COVID-19 is an admission of work relatedness. But because there's a higher standard for reporting requirements, and because an employer analyzing reporting requirements first must determine that the injury or illness is recordable, it's safe to assume that recording also does not denote an admission of work relatedness or responsibility.
Finally, Cal/OSHA confirms that Gov. Newsom's Executive Order N-62-20 regarding workers' compensation eligibility does not alter employers' recording or reporting obligations. CalOSHA guidance can be found here.
Given the confusion of unclear guidance, a prudent California business should seek advice from an attorney about whether the infection is work related and reportable.
Compare presumption and provision of a claim form
In determining whether a particular case of COVID-19 is work related for purposes of recording or reporting to OSHA, an employer is held to a "more likely than not" standard. That is, is it more likely than not that the illness came from work?
Note: This is not the same standard imposed on employers for the provision of a workers' compensation claim form. As discussed in-depth in this guide's section When Must a Claim Form Be Provided?, the employer is not required to provide a claim form and notice of rights to an employee unless the employer has actual knowledge that the COVID-19 is work related. Even a "reasonable certainty" is not enough to impose this obligation on the employer. It seems clear, then, that an employer could investigate and determine that a COVID-19 case must be recorded or even reported per OSHA standards, but still not be obliged to provide a claim form.
Also noteworthy is that the governor has issued an executive order that finds COVID-19 to be presumptively work related for some employees. This is discussed in-depth in the section COVID-19 Presumptions. This presumption goes to the burden of proof in the event that the parties contest whether a case is work related. This sort of dispute might result from the filing of a claim in the workers' compensation system. The executive order, however, says nothing about employer knowledge of when a case might be work related, or the standard under which the employer might make this decision per OSHA requirements. Accordingly, the presumption, and the likelihood that in a dispute the employee probably would prove work relatedness, does not pertain to the investigation the employer makes before a dispute arises. In other words, the employer's investigation and conclusions should be done independently of the presumption.
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 for a "serious" citation;
- criminal liability.
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.
OSHA withdraws recordable and reportable FAQs
As soon as OSHA issued new reporting guidance through its FAQs site, it quietly withdrew the information and the webpage without explanation. Employers should not rely on the briefly accessible guidance. We will update this section if and when OSHA reissues the information.
- Under certain circumstances in the ETS, and only for employees who are not exposed to suspected/confirmed sources of COVID-19 or other hazards that may require respirator use covered under the normal Respiratory Protection Standard (29 Code of Federal Regulations section 1910.134), employers must training employees on inspecting, removing, and using respirators such as N-95s. They also must instruct in the limitations and capabilities of the respirator; procedures for storing, maintaining, and inspecting respirators; how to perform a user seal check; and how to recognize medical signs and symptoms that might limit or prevent the effective use of respirators. See also the mini respiratory protection program (29 Code of Federal Regulations section 1910.504).
- California Code or Regulations, Title 8 section 14300(5)(a))
- California Code or Regulations, Title 8 section 14300(5)(b)(2)
- California Code or Regulations, Title 8 section 14300(5)(b)(3)
- California Code of Regulations, Title 8 section 342(a)
- California Code or Regulations, Title 8 section 330(h)
- California Labor Code 6310
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