OSHA Clarifies Employer Reporting of COVID-19 Fatalities and Hospitalizations

The United States Occupational Safety and Health Administration (OSHA) has published guidance on employer requirements for reporting employee fatalities and employee in-patient hospitalizations resulting from work-related cases of the coronavirus.

Employers must report an employee’s work-related COVID-19 death to OSHA within 8 hours of learning about it, the federal agency has reminded in a guidance updated on September 30.

OSHA also said in the guidance that employers must report employee in-patient hospitalizations related to workplace exposure to OSHA if the hospitalization occurs within 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, OSHA says. SARS-CoV-2 is the virus that causes COVID-19.

Employers are responsible for providing safe and healthful workplaces for their employees under the Occupational Safety and Health Act of 1970.

Reporting requirement for work-related COVID-19 fatalities

In general, an employer must “report a fatality to OSHA if the fatality occurs within thirty (30) days of the work-related incident,” under 29 CFR 1904.39(b)(6). A fatality due to COVID-19 must occur within 30 days of an exposure to SARS-CoV-2 at work in order to be reportable, OSHA says.

The employer must report the fatality within 8 hours of knowing both that the employee has died, and that the cause of death was a work-related case of COVID-19. Thus, OSHA says, if an employer learns that an employee died within 30 days of a work-related incident, and determines afterward that the cause of the death was a work-related case of COVID-19, the case must be reported within 8 hours of that determination.

Reporting requirement for hospitalization

In general, employers must report in-patient hospitalizations to OSHA if the hospitalization “occurs within twenty-four (24) hours of the work-related incident,” under 29 CFR 1904.39(b)(6).

An in-patient hospitalization due to COVID-19 must occur within 24 hours of an exposure to SARS-CoV-2 at work in order to be reportable, OSHA says. The employer must report the hospitalization within 24 hours of knowing both:

1. That the employee has been in-patient hospitalized, and
2. That the reason for the hospitalization was a work-related case of COVID-19

Thus, OSHA says, 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.

OSHA noted that in both instances — work-related COVID-19 fatalities and COVID-19 in-patient hospitalization — employers who are required to keep OSHA injury and illness records must still record work-related, confirmed cases of COVID-19.

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.

Guidance clears up employer confusion

Since the coronavirus began to affect employees in the United States, employers have faced difficulty in determining whether work-related hospitalizations and fatalities caused by COVID-19 are reportable to OSHA under 29 C.F.R. § 1904.39(b)(6), according to J. Davis Jenkins and Arthur G. Sapper, attorneys with law firm Ogletree Deakins.

Specifically, Ogletree Deakins noted there have been several areas of uncertainty including what constitutes the work-related “incident” that triggers the 24-hour period for reporting hospitalizations and the 30-day period for reporting fatalities to OSHA. The law firm also said another area of certainty that existed before the OSHA guidance was issued centered around whether an “incident” is the employee’s positive diagnosis for COVID-19, regardless of when the employee was exposed in the workplace.

The law firm also noted that in July 2020, OSHA published a contrary interpretation on its website stating that for cases of COVID-19, the work-related “incident” was the employee’s positive diagnosis, rather than exposure to the coronavirus at work, but that “within a few hours, OSHA removed those FAQs from its website.”