By Robert J. Reinertson
October 7, 2020
With ever-increasing cases of COVID-19 affecting Wisconsin and U.S. workplaces, many employers have been left confused as to whether, when, and how they are supposed to report those cases to OSHA. OSHA itself has issued differing guidance since the pandemic began. It has now, however, come out with some new clarification on those questions.
As background, an employer must report the death of any worker from a “work-related incident” to OSHA if it occurs within 30 days of the incident, and the employer must do so within eight hours of determining that the death was work-related. Employers must also report any amputation, loss of an eye, or in-patient hospitalization of an employee as a result of a “work-related incident” within 24 hours. But what exactly do these mean during a pandemic?
OSHA’s new clarification comes in the form of updated “COVID-19 Frequently Asked Questions”. These do not carry the force of law, but they are the best indication of OSHA’s position absent any regulation or formal guidance on the subject. There are two noteworthy items in the updated FAQs:
- OSHA has defined “work-related incident” as “an exposure to SARS-CoV-2 in the workplace”.
- In order for an in-patient COVID-19 hospitalization to be reportable to OSHA, it must occur within 24 hours of an exposure to the virus at work. The employer must report the hospitalization within 24 hours of knowing both that the employee has been hospitalized as an in-patient and that the reason was a work-related case of COVID-19. OSHA says that if the employer determines later that an employee was hospitalized with COVID-19 within 24 hours of being exposed to the virus at work, the case must be reported within 24 hours of that determination.
Similarly, in order for an employee fatality from COVID-19 to be reportable, the death must occur within 30 days of an exposure to the virus at work. The employer must report the fatality within eight hours of knowing both that the employee has died and that the cause of death was work-related exposure to the virus. If the employer later determines that an employee died of COVID-19 within 30 days of a work-related exposure to the virus, the death must be reported within eight hours of that determination.
Needless to say, employers are still left with the often-difficult challenge of determining that the COVID-19 case resulted from workplace exposure. Also, the new clarifications only apply to reporting cases to OSHA. Those employers who are subject to record-keeping requirements must still record work-related illnesses in their OSHA logs. For further information on record-keeping during the pandemic, see our earlier alert at OSHA Will Again Require Employers to Record COVID-19 Illness Cases.
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