By: Carl E. Habekost, Esq.
COVID-19 and OSHA Reporting Requirements
Under 29 C.F.R. 1904.39(b)(6), all employers are required to contact OSHA to report certain types of injuries and illnesses. The reporting requirement is in addition to recordability requirements. For example, employers must report an in-patient hospitalization if the hospitalization occurs within 24 hours of the “work-related incident”. Further, employers have 8 hours to report a work-related fatality that occurs within 30 days of the “work-related incident” which caused the death. We are in the midst of a world-wide COVID-19 pandemic. How do employers comply with reporting requirements involving the ubiquitous COVID-19 virus? Even OSHA appears confused in this matter because it quietly updated its COVID-19 FAQs in mid-July with an expansive and broad interpretation of an employer’s responsibility to report COVID-19 hospitalizations and fatalities. Then, just as quietly, it removed the guidance for employer reporting at the end of July.
There are two primary considerations involving the reporting requirement and the COVID-19 pandemic. First, the determination of whether an employee’s COVID-19 infection is work-related is extremely difficult given the pervasive presence of the virus. OSHA’s May 19 revised enforcement guidance reveals the agency’s clear view that COVID-19 is a recordable infectious disease unlike other viral infections like the flu or a cold. As such, some employers are using the recordability analysis as a guide of “work-relatedness” for reporting as well. Second, it is practically impossible for employers to define a specific “work-related incident” as the cause of an employee’s COVID-19 infection. So when does the precipitating event start the clock to report “within 24 hours of the work-related incident”? For example, if an employee is asymptomatic on Friday, receives a positive test the next Tuesday, and isn’t hospitalized until two weeks later – when does the period begin to run to “report within 24 hours of the work-related incident”? At this point, there is no clear answer to such questions.
Please contact the attorneys in our Labor and Employment section with questions or concerns.
OSHA’s Reliance on the Heat Index Chart
OSHA has typically relied upon the National Weather Service’s “Heat Index Chart” as a key piece of evidence to establish that employers have exposed employees to excessive levels of heat in violation of the General Duty Clause. In a recent case, however, on July 15, 2020, Judge Sharon Calhoun of the Occupational Safety and Health Review Commission (OSHRC) held that the Heat Index Chart used by OSHA in heat stress cases has no scientific basis. In 2016 and 2017, OSHA issued five citations alleging violation of the General Duty Clause due to excessive levels of heat which ended up before administrative law judges. In each such case, OSHA introduced the National Weather Service Heat Index Chart into the trial record and pointed to it as evidence. This recent decision could very well cause the end of OSHA’s ability to rely on the heat index chart as evidence to support citations involving excessive levels of heat. We will continue to advise of developments in this area of OSHA law.
OSHA fines Ohio Company for Violating Respiratory Standard
OSHA recently cited an Ohio healthcare company for alleged serious violations of respiratory regulations following an inspection which was initiated after the company reported the coronavirus-related hospitalization of employees. Upon inspection, OSHA Compliance Officers found that although N95 respirators were provided to employees, the employer failed to follow regulations involving a written respirator program and failed to provide medical evaluations to determine employees’ ability to use a respirator in the workplace. OSHA proposed $40,085 in penalties for the alleged violations. OSHA’s press release stated in part that “It is critically important that employers take action to protect their employees during the pandemic, including by implementing effective respiratory protection programs….OSHA has and will continue to vigorously enforce the respiratory protection standard and all standards that apply to the coronavirus.” According to the OSHA standard 1910.134(e)(1), an employer “shall provide a medical evaluation to determine the employee’s ability to use a respirator before the employee is fit tested or required to use a respirator in the workplace.” Employers must remember that compliance with all regulations is necessary during the COVID-19 pandemic.
Virginia is First State to Pass an Emergency Safety Standard to Address COVID-19 in the Workplace
The Virginia Safety and Health Codes Board passed a groundbreaking standard to address COVID-19 in workplaces which became effective at the end of July. Virginia Occupational Safety and Health (VOSH) will now enforce a standard that mandates guidance issued by the U.S. Centers for Disease Control and Prevention (CDC), the Occupational Safety & Health Administration (OSHA), and more. The new standard covers all state and local employees as well as most private employers in Virginia.
In addition to CDC and OSHA guidelines, the standard includes provisions that require employers to:
• Provide flexible sick leave policies, telework and staggered shifts when feasible;
• Provide both handwashing stations and hand sanitizer when feasible;
• Assess risk levels of employers and suppliers before entry;
• Notify the Virginia Department of Health of positive COVID-19 tests;
• Notify VOSH of three or more positive COVID-19 tests within a two-week period;
• Assess hazard levels of all job tasks;
• Provide COVID-19 training of all employees within 30 days (except for low-hazard places of employment);
• Prepare infectious disease preparedness and response plans within 60 days;
• Post or present agency-prepared COVID-19 information to all employees; and
• Maintain air handling systems in accordance with manufacturers’ instructions and American National Standards Institute (ANSI) and American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) standards.
• Place requirements on workplaces based on hazard levels (i.e., “very high,” “high,” “medium,” and “low”);
• Screen employees prior to entry to work;
• Establish requirements for employees with COVID-19 positive tests and symptoms before returning to work;
• Require social distancing or, when social distancing is not possible, respiratory protection; and
• Clean and disinfect commonly used areas and equipment.
The new standard also protects employees who raise reasonable concerns about infection control to social or other media. In addition, the emergency standard requires building and facility owners to report positive COVID-19 tests to employer tenants. The standard will expire within six months, or upon expiration of the Governor’s State of Emergency, or the enactment of a permanent standard.