By Mollie Smith*
In July, the Occupational Safety and Health Administration published a “Frequently Asked Question” containing new instructions for reporting work-related hospitalization cases of COVID-19. Our July 16 bulletin explained that this new interpretation required employers to report cases of inpatient hospitalization due to confirmed COVID-19 within 24 hours of an employer’s learning about it, regardless of the amount of time that had passed since the employee was last exposed to the coronavirus at work. However, on the weekend of July 25, OSHA took down that FAQ from its website, without publishing any notice that the Agency was doing so. OSHA left posted with its other COVID-19 FAQs only the Agency’s general instructions about the mechanics of how to report any case involving either an inpatient hospitalization or death from a work-related injury or illness.
Presumably, this withdrawal of the FAQ brings us back to treating work-related COVID-19 cases like any other case under the existing hospitalization reporting rule, 29 CFR §1904.39(b)(6). This rule requires a work-related, inpatient hospitalization to be reported only if the hospitalization “occurs within twenty-four (24) hours of the work-related incident.” The “incident” in a COVID-19 case, as with any other illness, would be the last exposure in the workplace to whatever caused or contributed to the condition.
As of today, OSHA has not offered any explanation for the sudden withdrawal of the reporting FAQ. It is possible that the Agency received many objections to the new interpretation because it was contrary to the existing regulation dealing with the reporting of inpatient hospitalizations, § 1904.39(b)(6). Regardless of the reason, with the withdrawal of the FAQ, we recommend applying § 1904.39(b)(6) in determining when you need to report a work-related COVID-19 hospitalization.
*Mollie Smith is a rising senior and prelaw student at Samford University who is working for the summer in our Atlanta Office.
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