OSHA has issued new Frequently Asked Questions addressing when an employer must report work-related cases of COVID-19. Unfortunately, the FAQs seem contrary to the 24-hour hospitalization rule.
As you likely know, section 1904.39(b)(6) requires employers to report an inpatient hospitalization only if the hospital admission occurs within 24 hours of a work-related incident. Applying this to COVID, if an employee is exposed at work and then goes to the hospital within 24 hours, employers would have to report the hospitalization.
OSHA appears to have changed its position on this interpretation with its new FAQs. The FAQs require an employer to report COVID related hospitalizations when the employer has knowledge that (1) the employee has been hospitalized (2) as a result of COVID. OSHA appears to ignore the 24-hour work exposure requirement.
Here’s a potential situation. Employee is exposed to COVID at work and calls in sick suffering from COVID type symptoms. A few days later, the employer learns that the employee has been admitted to the hospital due to worsening symptoms. The employer does not know if the employee has COVID, but under OSHA’s FAQs, the employer must report to OSHA the hospitalization, regardless of whether the employee was hospitalized within 24 hours of the exposure. Of course, the delay in symptoms and the potential of various sources of exposure, makes this situation even more difficult to assess.
Although OSHA’s FAQs are merely guidance, the lack of clarity is cause for concern. The most conservative approach is to report to OSHA within 24 hours of when you learn that an employee exposed on the worksite has been hospitalized.
If you are wrestling with your OSHA obligations in this COVID environment, we recommend you consult with experienced counsel to assess your situation.