Labor & Employment Law Daily Dem lawmakers question OSHA COVID-19 guidance that changed reporting requirements
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Monday, October 19, 2020

Dem lawmakers question OSHA COVID-19 guidance that changed reporting requirements

By Pamela Wolf, J.D.

“This guidance does not follow the science regarding what is known about COVID-19,” according to Dem lawmakers.

Democratic leaders on the House Education and Labor Committee and Subcommittee on Workforce Protections are questioning a recent OSHA policy change that they say will “result in sharply reduced reporting of COVID-related workplace hospitalizations and fatalities and undermine efforts to protect the safety of workers.”

New reporting FAQs. The lawmakers criticized new guidance announced by OSHA on September 30, 2020. In that announcement, OSHA pointed to new frequently asked questions, including these:

  • Question: An employee has been hospitalized with a work-related, confirmed case of COVID-19. Do I need to report this in-patient hospitalization to OSHA?
  • Answer:Under 29 CFR 1904.39(b)(6), employers are only required to report in-patient hospitalizations to OSHA if the hospitalization “occurs within twenty-four (24) hours 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, an in-patient hospitalization due to COVID-19 must occur within 24 hours of an exposure to SARS-CoV-2 at work. The employer must report such hospitalization within 24 hours of knowing both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19. Thus, if an employer learns that an employee was in-patient hospitalized within 24 hours of a work-related incident, and determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19, the case must be reported within 24 hours of that determination. See 29 CFR 1904.39(a)(2), (b)(7)-(b)(8).
  • Employers should note that 29 CFR 1904.39(b)(6)’s limitation only applies to reporting; employers who are required to keep OSHA injury and illness records must still record work-related confirmed cases of COVID-19, as required by 29 CFR 1904.4(a). For more information on recording cases of COVID-19, see https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
  • Question: An employee has died of a work-related, confirmed case of COVID-19. Do I need to report this fatality to OSHA?
  • Answer: 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.
  • Employers should note that 29 CFR 1904.39(b)(6)’s limitation only applies to reporting; employers who are required to keep OSHA injury and illness records must still record work-related fatalities, as required by 29 CFR 1904.4(a). For more information on recording cases of COVID-19, see https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.

Changes effectively eliminate COVID-19 reporting. In an October 14 letter to Labor Secretary Eugene Scalia and Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Lauren Sweatt, the lawmakers wrote: “This guidance will eliminate, for all practical purposes, reporting of a work-related COVID-19 (COVID) illness because it establishes a precondition that hospitalization for such illness must occur within 24 hours of exposure to the virus that causes the disease—not 24 hours from the hospitalization. This guidance does not follow the science regarding what is known about COVID-19. The incubation period leading to symptoms is two to 14 days after exposure, and subsequent hospitalization and death can follow even later.”

The lawmakers also noted that under the guidance, “any death that occurs within 30 days of a workplace incident must also be reported to the agency within eight hours after the employer becomes aware of the work-related fatality.”

Before the change in reporting requirement. This is a departure from current reporting requirements. “Prior to this recent change, OSHA had consistently maintained that the clock for reporting COVID-related hospitalizations or deaths starts when a workplace-related COVID death or hospitalization occurs, or when the employer is made aware that the COVID-related death or hospitalization is work-related,” wrote the committee leaders.

Negative impact. “As the pandemic continues unabated in this country, this change by OSHA undermines its mission to assure safe and healthful working conditions for workers,” the lawmakers wrote. “By cutting off the employer’s duty to notify OSHA regarding workplace outbreaks, the agency will lose the ability to follow up on workplace outbreaks with enforcement or compliance assistance activity. This change will also cause significant damage to our nation’s capacity to control the spread of the novel coronavirus.”

Why were the changes made? The lawmakers are requesting a detailed description of OSHA’s justification for making changes to the reporting requirements, as well as communication between OSHA and the Department of Labor or outside parties on this issue.

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