Stephen Scott, BridgeTower Media Newswires
Many businesses operating during the COVID-19 pandemic may face the very real issue of dealing with employees’ OSHA concerns. That is enhanced for those businesses that are using temporary workers and contractors, in addition to employees.
Employers should always keep in mind their responsibilities for notifying the Occupational Safety and Health Administration (OSHA) of reportable injuries and illnesses involving nonemployee workers as well as employee workers. Under some circumstances, an employer may even have to report a nonemployee’s injury.
Federal OSHA’s reporting rules
Typically, employers must report incidents to federal OSHA when an employee fatality occurs on the job within eight hours of the accident, or when an employee suffers a work-related in-patient hospitalization, amputation or loss of an eye within 24 hours. Just like all in-patient hospitalization admissions, if an employee is hospitalized because of COVID-19, and the employee contracted COVID-19 while at work, the employer must report that in-patient hospitalization to OSHA – but only if the hospitalization occurs within 24 hours of the employee contracting the virus.
But what if more parties than the employer are present at the work site at the time of the fatality or reportable injury? Who must report it to OSHA?
OSHA provides that companies and their subcontractors, including staffing agencies, must coordinate their efforts to ensure that each injury and illness is recorded only once on an OSHA 300 log – by the employer that provides day-to-day supervision. Only one employer can actually provide day-to-day supervision under OSHA’s record-keeping regulations. The determination regarding which entity must record the injuries and illnesses must be based on the facts concerning day-to-day supervision at the work site.
OSHA has clarified that day-to-day supervision occurs when “in addition to specifying the output, product or result to be accomplished by the person’s work, the employer supervises the details, means, methods and processes by which the work is to be accomplished.” This could be a host employer or staffing agency, depending upon the circumstances.
Similarly, OSHA provides that “within 24 hours after the in-patient hospitalization of one or more employees … as a result of a work-related incident, you must report the in-patient hospitalization.” The standard does not define “you.” Presumably, it refers to “employer,” based on the preceding use of the term “employee.”
Further, this particular standard does not provide a definition of the employer-employee relationship. OSHA recognizes this ambiguity and provides clarification on its website, stating that it applies the same requirements for recording injuries and illnesses on an OSHA 300 log that it applies for reporting reportable work-related incidents. Therefore, the employer that provides the day-to-day supervision of the worker is responsible for reporting the incident to OSHA.
OSHA’s guidance on COVID-19
Federal OSHA just issued guidance for enforcing its record-keeping requirements for COVID-19 cases. These requirements mandate that covered employers record certain work-related injuries and illnesses on their OSHA 300 log.
The record-keeping obligation
According to the guidance, COVID-19 is a recordable illness, and must be recorded on an employer’s OSHA 300 log if:
• The case is a confirmed case of COVID-19 (meaning an individual has at least one respiratory specimen that tests positive for SARS-CoV-2, the virus that causes COVID-19);
• The case is work-related (as defined by OSHA); and
• The case involves one or more of the general recording criteria as outlined by OSHA: if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond “first aid” (as defined by OSHA), or loss of consciousness.
Limited enforcement waiver
Recognizing the difficulty in determining whether COVID-19 was contracted while on the job, OSHA will not enforce its record-keeping requirements that would require employers in areas where there is ongoing community transmission to make work-relatedness determinations for COVID-19 cases, except where:
• There is objective evidence that a COVID-19 case may be work-related; and
• The evidence was reasonably available to the employers.
This waiver of enforcement does not apply to employers in the health care industry, emergency response organizations (e.g., emergency medical, firefighting and law enforcement services), and correctional institutions in areas where there is ongoing community transmission. These employers must continue to make work-relatedness determinations.
This new guidance provides employers with one fewer issue to worry about in their response efforts to an employee with a confirmed case of COVID-19. Employers should continue to focus on minimizing the risk of transmission in the workplace.
This a constantly evolving area, with new guidance being issued nearly every day. If an employee suffers a recordable or reportable injury involving a COVID-19 exposure, seek the advice of counsel to act appropriately.
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Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or smscott@fisherphillips.com.
