By Charles P. Keller, Amelia Esber and Kevin Brown
OSHA recently provided a reminder (through its website) to employers on recording of workplace exposures associated with COVID-19 (https://www.osha.gov/SLTC/covid-19/standards.html). The current pandemic does not alter the rules regarding recording contagious diseases. The OSHA recordkeeping requirements found in 29 C.F.R. § 1904 mandate that covered employers record certain work-related injuries and illnesses on their OSHA 300 log. While the common cold or flu is not recordable, under § 1904.5(b)(2)(viii), COVID-19 is not considered a common cold or flu in the above exception for recording illnesses. See P8104A OSHA Issues H1N1 Directive For Healthcare Workers. A pandemic-type illness needs to be recorded if it is work related. Keep in mind that under § 1904.5(b)(2)(ii), any illness or injury that involves signs or symptoms that surface at work but resulted SOLELY from a non-work-related event or exposure that occurs outside the work environment does not need to be recorded. This is a very high burden for an employer to establish or prove.
It will be very difficult to prove that an employee SOLELY developed his/her COVID-19 exposure from outside the work environment. One type of situation that would not be recordable could occur where an employee returned from a trip to a risk level foreign country, was being quarantined, and then got sick. Such a situation would not have to be recorded. Or, imagine an event where an employee is living with someone with the virus and then the employee also gets sick, but no one within close contact of the employee at the workplace has been diagnosed with the virus. You could take the position in this fact scenario as well that the illness is not a recordable event. Other than these specific types of examples or other similar fact situations, OSHA will contend that the employee's virus illness is work related and, therefore, needs to be recorded. Once OSHA takes that position, which would be their normal legal position, then the employer has the burden of proving that the employee contracted the virus SOLELY from a source outside of the workplace. That is a very difficult burden to meet.
Assuming that you establish that the employee’s COVID-19 illness is a recordable event, the next consideration is whether the employee’s illness rises to the level that requires the employer to report such to OSHA. There is no specific OSHA regulation or standard that requires the immediate reporting of such a work-related pandemic illness to OSHA. If, as a result of this work-related illness, the employee dies, the employer has an obligation to contact OSHA within eight hours of the fatality. If the employee is hospitalized, you may also need to report this event to OSHA. Under § 1904.39(a)(2), an employer has to report the hospitalization to OSHA within 24 hours. Such a hospitalization needs to be an in-patient admission to the hospital. Additionally, this in-patient hospitalization must be for more than observation and/or diagnostic purposes. An employer does not have to report an in-patient hospitalization that involves only observation or diagnostic testing. See § 1904.39(b)(10). The conduct of diagnostic procedures including x-rays, blood tests, or even the administration of prescription medications used solely for diagnostic purposes is not going to be considered medical treatment. See § 1904.7 (b)(5)(i)(B).