OSHA Requirements — Recording and Reporting COVID-19

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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 report 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 might have a high frequency of close contact exposure, and to control the health hazards associated with it. That involves a combination of inspection targeting, outreach to employers, and compliance assistance. OSHA's NEP is 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. They include, but are not limited to:

• health care (hospitals, doctors offices, dentists' offices, long-term care facilities, home health-care services)
• grocery and big-box stores
• temporary staffing agencies
• full-service and fast-food restaurants
• food and beverage manufacturing
• construction
• critical manufacturing (paper, chemicals, plastics, metals)

How Companies Are Targeted for Inspection

OSHA will target specific businesses within the high-risk industries based on several factors including:

• fatalities
• complaints and referrals –– allegations of potential worker exposures to coronavirus (e.g., 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?

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, including the use of face coverings and other PPE. OSHA is authorized to review records, interview employees and owners, and inspect 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.
• 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 recordkeeping, 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 recordkeeping 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.

Recordable Incidents

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

1. The case is confirmed as COVID-19.
2. The case is work related, as defined by 29 Code of Federal Regulations § 1904.5.
3. 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, 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:

• death
• 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."

Is the Case Work Related?

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 Centers for Disease Control and Prevention (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, 2020, 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:

1. Ask the employee how he or she believes they contracted the illness.
2. 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
3. Review the employee's work environment for potential COVID-19 exposure.

Employers should question employees about possible outside exposure immediately on 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 that 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 people 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:

• death
• 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.

Reportable Incidents

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. Cal/OSHA guidance is 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: That's 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 it 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. The presumption goes to the burden of proof in the event that the parties contest whether a case is work related. Such a 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 the 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.

See Also

• "Sullivan on Comp" Chapter 11: Return to Work

References

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