The Occupational Safety and Health Administration had initially published guidance in early July explaining when COVID-19 cases had to be reported, and then without explanation or announcement retracted that guidance. OSHA has now issued new guidance that clarifies the circumstances under which cases involving either an admission to a hospital or a fatality must be reported to the nearest OSHA Area Office.

OSHA’s new guidance for cases involving admission to a hospital is consistent with the existing recordkeeping rule on reporting, and the case analysis that we recommended in August:

Under 29 CFR 1904.39(b)(6), employers are only required to report in-patient hospitalizations to OSHA if the hospitalization "occurs within twenty-four (24) hours of the work-related incident." For cases of COVID-19, the term "incident" means an exposure to SARS-CoV-2 in the workplace. Therefore, in order to be reportable, an in-patient hospitalization due to COVID-19 must occur within 24 hours of an exposure to SARS-CoV-2 at work. The employer must report such hospitalization within 24 hours of knowing both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19. Thus, if an employer learns that an employee was in-patient hospitalized within 24 hours of a work-related incident, and determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19, the case must be reported within 24 hours of that determination.  [Citation omitted.]

COVID-19-related fatality cases must be reported to OSHA no later than eight hours after the employer learns both that an employee had tested positive for COVID-19 and that the employee died as a result. But as the new guidance provides, fatality cases must be reported only if the fatality occurred within 30 days of the employee’s last work-related exposure to coronavirus, which under most circumstances would be the last day the employee was at work.

Lessons learned

Many employers have been reporting COVID-19 hospitalization cases unnecessarily, believing incorrectly that all such cases needed to be reported within 24 hours of the admission to a hospital. With this new guidance, OSHA has stayed true to its existing regulation, which provides that the admission must be within 24 hours of the last work-related exposure.

Please also remember to analyze carefully whether COVID-19 cases at your facility are work-related, because OSHA has created a significant exception if an employer can find “an alternative explanation” for the case, such as an exposure away from work.

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