Do employers have to report employee COVID-19 diagnoses, hospitalizations, and deaths?
The short answer, like many under the law, is maybe. Under 1904.39, employers must record and report the following to OSHA by calling or submitting a report online: a fatality (within 8 hours), in-patient hospitalization (within 24 hours), amputation (within 24 hours), or loss of an eye ( within 24 hours).
What if an employee is hospitalized due to COVID-19?
The incident is reportable only if the in-patient hospitalization occurs within 24 hours of a work-related exposure incident, and the employer “determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19.”
What if an employee dies of COVID-19?
The answer is similar. The death must occur within 30 days of work-related exposure, and the employer “determines afterward that the cause of death was a work-related case of COVID-19.” The fatality must be reported within 8 hours of learning of the death and its link to a workplace exposure.
How do employers investigate causation?
It seems unlikely that an employer is going to be able to definitively trace causation to a work-related exposure, given the numerous possibilities for exposure and infection in the general public. Even OSHA recognizes that community spread and the contagious nature of COVID-19 make it difficult to investigate causation. OSHA expects employers to do the following and decide if work-related exposure was “more likely than not” a cause:
- Conduct a reasonable investigation.
- Ask the employee how he thinks he contracted COVID-19.
- Discuss the employee’s work and off-duty activities that may have led to exposure to COVID-19.
- Investigate potential exposure in the employee’s work area.
- Consider all evidence reasonably available to the employer, and consider new evidence that arises.
- An employee’s COVID-19 illness is likely work-related if:
- Several employees in the same area all contracted COVID-19 around the same time with no alternative explanation.
- It is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 with no alternative explanation.
- The employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission with no alternative explanation.
- An employee’s COVID-19 illness is likely not work-related if:
- The employee is the only worker to contract COVID-19 in his vicinity, and his job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- The employee, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (a) has COVID-19; (b) is not a coworker, and (c) exposes the employee during the period in which the individual is likely infectious.