As a follow-up to its May 2020 enforcement guidelines on recording workplace COVID-19 cases, the Occupational Safety and Health Administration (OSHA) has issued additional guidance to employers for reporting coronavirus-related hospitalizations and fatalities.
Hospitalizations
OSHA reiterated that employers must report inpatient hospitalizations to the agency if they occur within 24 hours of a work-related incident. In COVID-19 cases, an “incident” is an exposure to the virus in the workplace.
For the hospitalization to be reportable to OSHA, the employer must know it was triggered by a work-related case of COVID-19. If it’s found to be work-related after the fact, the employer must report the hospitalization within 24 hours of the determination.
Fatalities
If a death occurs within 30 days of a workplace exposure to COVID-19, the employer must report the fatality to OSHA within eight hours. If the fatality occurs within 30 days of the incident but the connection isn’t made until later, the employer must report it within eight hours of the determination.
Employers, be aware: OSHA’s new guidance doesn’t replace the reporting requirements already in place under 29 C.F.R. 1904.39. Minnesota OSHA adopted the reporting requirements, which became effective on October 1, 2015.
Also, keep in mind that OSHA enforcement guidance from 2016 states a “citation shall be issued if an employer fails [to] report” under 29 C.F.R. 1904.39. Under Minnesota OSHA, specifically Minn. Stat. 182.666, the amount of the fine depends on the classification of the cited violation. Repeat or willful violations, however, could yield a minimum $5,000 fine.
Bottom Line
OSHA’s reporting guidance appears to give employers some leeway in reporting inpatient hospitalizations and fatalities subject to an ultimate determination of work-related COVID-19 exposure. You still have a duty to conduct a reasonable investigation to determine if coronavirus cases are work-related and therefore reportable. Failure to do so may result in citations and penalties.
Brad R. Kolling is an attorney with Felhaber Larson in Minneapolis, Minnesota. You can reach him at bkolling@felhaber.com.