OSHA quietly updated its COVID-19 FAQs in mid-July to add guidance that took an extremely broad (and arguably unenforceable) interpretation of an employer’s responsibility to report COVID-19 hospitalizations and fatalities. Just as quietly, over the last weekend in July, it removed the updated Reporting FAQs. Now employers are left to speculate whether the guidance is gone for good, or whether they need to be on the alert for the guidance to return.
Under 29 C.F.R. § 1904.39(b)(6), all employers – including low-risk employers exempt from most OSHA recordkeeping requirements – must contact OSHA to report certain serious work-related injuries and illnesses. Employers have 8 hours to report a work-related fatality that occurs within 30 days of the work-related incident precipitating it. Employers have 24 hours to report an in-patient hospitalization if the hospitalization occurs within 24 hours of the work-related incident. This standard has been almost impossible for employers to comply with through the COVID-19 epidemic.
First, the determination of whether an employee’s COVID-19 infection is work-related at all is difficult, given the wide community spread of the disease. OSHA’s May 19 revised enforcement guidance made plain that it views COVID-19 as a recordable infectious disease – unlike, for example, a cold or the flu. (Note that this enforcement guidance expressly refers only to recordable incidents and does not reference the totally separate standard for reporting incidents. Nevertheless, as it remains the only guidance on determination of work-relatedness of COVID-19, many employers are using this guidance to also guide their analysis of work-relatedness for reporting as well. Read Courtney Malveaux’s blog entry discussing this guidance here.)
Second, it is almost impossible to define a specific “work-related incident” which led to a COVID-19 infection, due to its usual asymptomatic presentation during the first days after infection. If an employee is asymptomatic on her last day of work on Tuesday, receives a confirmed positive COVID-19 test on Thursday, and isn’t hospitalized until two weeks later – when does the “within 24 hours of the work-related incident” period begin to run?
Per the now-deleted FAQ, that period would begin to run as soon as the employer knew that she was both (1) hospitalized and (2) COVID-19 positive – even though that is two weeks after she was last at work. As written, the FAQ even entirely removed any consideration of work-relatedness from the analysis and collapses the two 24-hour periods into one – a complete departure from the requirements of the regulation. The FAQ similarly removes the work-relatedness determination from reports of COVID-19 fatalities. Essentially, if these FAQs were enforceable, employers could be required to notify OSHA any time any of their employees were hospitalized or died of COVID-19 – even if the employee had not reported physically into work for months.
Employers should remember that OSHA’s FAQs are merely guidance, and do not carry the same weight as a legally enforceable regulation that has gone through a notice and comment period. So even if these interpretations pop up again in OSHA’s FAQs or elsewhere in OSHA’s COVID-19 guidance, there are strong arguments against enforceability. However, it is helpful for employers to understand the broad interpretation that OSHA has, at least, considered long enough to draft and post answers to FAQs – even if they only left them up for a few days.
If you have questions or need assistance, or would like to see a copy of the withdrawn FAQs, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.