As a follow-up to its May 19, 2020, enforcement guidance on recording workplace COVID-19 cases, OSHA has issued additional guidance to employers for the reporting of COVID-19 related inpatient hospitalizations and fatalities.
With regard to inpatient hospitalizations, OSHA reiterated that employers are required to report in-patient hospitalizations to OSHA if it occurs within twenty-four hours of a work-related incident. In COVID-19 cases, an “incident” is an exposure to COVID-19 in the workplace. In order for an inpatient hospitalization to be reportable to OSHA, the employer must know that the inpatient hospitalization was due to a work-related case of COVID-19. If a determination of work-relatedness is made after the fact, the employer must report the inpatient hospitalization within 24 hours of the determination of work-related COVID-19 exposure.
In cases of death due to work-related COVID-19 exposure, the employer must report the fatality to OSHA within eight hours if the death occurs within thirty days of exposure in the workplace. If the fatality occurs within thirty days of the incident and a determination of work relatedness is made later, the employer must report the fatality within eight hours of that determination.
Employers should be aware that this guidance does not replace the reporting requirements already in place under 29 C.F.R. 1904.39. Minnesota OSHA adopted these reporting requirements, which became effective October 1, 2015. Also to keep in mind, OSHA enforcement guidance from 2016 states that “citation shall be issued if an employer fails report” under 29 C.F.R. 1904.39. Under Minnesota OSHA, specifically Minn. Stat. 182.666, the amount of the fine for a cited violation depends on the classification of the violation. However, repeat or willful violation could yield a minimum fine of $5,000.00.
OSHA’s reporting guidance appears to give some leeway to employers in reporting inpatient hospitalizations and fatalities subject to an ultimate determination of work-related COVID-19 exposure. Employers still have a duty to conduct a reasonable investigation to determine if COVID-19 cases are work-related and thus reportable in these instances. Failure to do so may result in citations and penalties.