The Occupational Safety and Health Administration (“OSHA”), part of the U.S. Department of Labor, continues to update guidance for employers regarding protection of employees from exposure to COVID-19. Despite their best intentions, many employers have struggled to adapt to the constantly changing safety and reporting requirements during the COVID-19 pandemic. OSHA recently updated its COVID-19 Frequently Asked Questions and now require employers to report, within eight hours, the death of any employee due to COVID-19 that was contracted on the job.
More specifically, OSHA states that:
Under 29 CFR 1904.39(b)(6), an employer must “report a fatality to OSHA if the fatality occurs within thirty (30) days of the work-related incident.” For cases of COVID-19, the term “incident” means an exposure to SARS-CoV-2 in the workplace. Therefore, in order to be reportable, a fatality due to COVID-19 must occur within 30 days of an exposure to SARS-CoV-2 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 a work-related case of COVID-19. Thus, if an employer learns that an employee died within 30 days of a work-related incident, and determines afterward that the cause of the death was a work-related case of COVID-19, the case must be reported within eight hours of that determination.
A fatality may be reported by calling the nearest OSHA office, electronic submission, or calling OSHA’s 24 hour hotline at 1-800-321-OSHA (6742). Employers must also report the hospitalizations of employees that resulted from a workplace exposure. That notification must be made to OSHA within 24 hours where the employer knows that (1) the employee has been admitted to hospital as an inpatient, and (2) the reason for the hospitalization was a workplace exposure.
OSHA has previously determined that COVID-19 is a recordable illness on an employer’s OSHA 300 log where: (1) the case is a confirmed diagnosis of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first aid, days away from work).
Employers continue to face significant challenges in maintaining open and safe workplaces during the COVID-19 pandemic. OSHA’s additional information on steps employers should be taking to protect workers from COVID-19 exposure may be found here. Together with the U.S. Department of Health and Human Services, OSHA has also published Guidance on Preparing Workplaces for COVID-19.
It is also useful to note that various state OSHA entities have issued guidance documents for a multitude of workplaces and activities, specifically geared towards their individual circumstances. Examples include restaurants, retail establishments, gyms and athletic facilities, youth sports, health care facilities, and office environments.
Norton Rose Fulbright attorneys will continue to provide relevant updates for healthcare providers on our Health Law Pulse.