You’ve probably noticed that lately OSHA has been actively issuing coronavirus-related fines. But does that mean you have to notify them by phone or the agency’s Form 301 (Injury and Illness Incident Report) if any of your employees contracts the virus at work?
OSHA’s coronavirus reporting policy as of Sept. 30 is similar to the agency’s Severe Injury Reporting rules. You have:
- 24 hours to notify when someone is hospitalized with a work-related case of COVID-19, and
- eight hours to notify when someone dies from work-related COVID-19 if the worker dies within 30 days of “the incident.”
A violation carries a minimum $5,000 fine and may trigger an in-person inspection.
But when it comes to reporting employee hospitalizations for the coronavirus, there’s a gray area in defining the time of the incident. It can be interpreted to mean initial exposure to the virus — which is difficult to pinpoint — rather than when symptoms of COVID-19 begin to show.
Because the virus incubates for at least 24 hours before requiring hospitalization, under that interpretation of “incident,” you wouldn’t be required to report it to OSHA — which generally places a high priority on investigating hospitalizations of two or more workers.
That loophole may close with the incoming Biden administration, however. In a Premier Learning Solutions webinar, attorney and workplace safety specialist Adele Abrams advised regularly checking the OSHA website for updates to workplace COVID-19 safety enforcement.
There’s a chance your state may have a reporting requirement to a non-OSHA entity. A few states have adopted, or are about to adopt, their own coronavirus enforcement emergency temporary standards. For example, Virginia OSHA requires notification of the state health department about any workplace COVID-19 cases, and again if there are three or more cases in a 14-day span.
Because differing state policies could be a potential headache for multistate employers, Abrams recommended making a patchwork quilt-like chart tracking which state does what — similar to what some companies have done to keep track of state medical cannabis laws.
Now’s a good time to bookmark and regularly check COVID-19 guideline (and State OSHA Plan) websites for the states you do business in to see if there are any compliance areas that need to be shored up.
What about recordkeeping?
The answer is yes.
OSHA says COVID-19 is a recordable illness for all industry sectors. It also must be logged if an employee is hospitalized for work-related COVID-19 that results in restricted duties, including working from home.
Employers must record illnesses if there’s “objective evidence” that a COVID-19 case may be work-related and the evidence was “reasonably available” to the employer. Abrams advised using the Cal/OSHA approach of presuming an employee case of the coronavirus — with or without a positive test — is work-related if any workplace exposure at all is identified, even if the cause of illness is more likely from a nonworkplace exposure.
In the event an employee comes down with the virus, it’s a smart idea to conduct an investigation to find out:
- what interactions the employee had with people known to be infected (OSHA doesn’t require contact tracing)
- who was working in the same area where people known to have the virus have been, and
- if tools, materials or vehicles have been shared with known carriers.
For now, OSHA doesn’t require employers to notify employees if one of their co-workers gets COVID-19. But you still must take appropriate steps to protect workers by:
- cleaning and disinfecting the work environment
- notifying workers to monitor themselves for symptoms of COVID-19, or
- implementing a screening program in the workplace.
The Centers for Disease Control & Prevention Guidance for Business and Employers recommends notifying employees about co-workers with COVID-19, and so does Abrams. She said silence can lead to bigger outbreaks and lawsuits from individuals, such as day laborers and temporary staffers, that fall outside the workers’ comp exclusive remedy option.
If your company hasn’t done so already, now’s the time to define and implement a policy for employee reporting of possible COVID-19 illness. Keep in mind an employer can’t fire, or otherwise discriminate against, employees for reporting work-related illnesses.
It’ll be interesting to see what effect this might have on the future of reporting (notifying OSHA) and recording (keeping a log) occupational illnesses like mesothelioma, asbestosis, etc. We’ll keep you posted.
For more, check out the full Premier Learning Solutions webinar “New Risks for Employers: Changes to OSHA Injury and Illness Recordkeeping Rules.”