COVID-19: OSHA Reporting and Recordkeeping

When COVID-19 made its appearance last year, no other organization was looked to for guidance and direction more than the Occupational Health and Safety Administration (OSHA). During the pandemic, OSHA still managed to conduct 21,674 workplace inspections[1] which resulted in levying $4,034,288[2] in penalties against companies just for COVID-related violations.

While the majority dealt with violations of the respiratory protection standards, at least 20% were violations of 29 CFR § 1904, the standard for the recording and reporting of occupational injuries and illnesses. In this article we’re going to go over what OSHA cited, talk about what employers are required to do when it comes to reporting and recordkeeping cases of COVID-19 and discuss how the standard applies to company required vaccines.

Most Frequently Cited

OSHA cited companies 174 times for COVID-related violations of the recordkeeping and reporting standards, 159 (or 91%) of those citations were issued for violations of these two parts of the standard:

• 29 CFR § 1904.4(a) which deals with the basic requirement for employers to record and keep records of new cases of work related fatalities, injuries, and illnesses meeting one or more of the general recording criteria
  
  
• 29 CFR § 1904.39(a)(1) which deals with reporting work-related deaths to OSHA within 8 hours

In other words, there were a whole bunch of employers that didn’t follow reporting or recordkeeping requirements where work-related COVID-19 cases were concerned. The primary reason for that seems to be general confusion about the determination of “work-relatedness”, which we’ll discuss next.

Work-Relatedness

The most common response from employers when the discussion turns to reporting certain cases of COVID-19 to OSHA and/or recording them on their 300 logs is: “How do we know if a case of COVID-19 is work related?”.

Before we get any further, what exactly does OSHA mean by “work related”? While OSHA does give a more detailed response in the federal standard, the gist of things is simply that if something within the work environment either caused or contributed to the illness or injury, it’s most likely work-related—but there are exceptions. OSHA lists nine different situations in which an injury or illness would not be considered “work-related” and at least one of these exceptions is what’s fueling the confusion about reporting and/or recording cases of COVID-19.

OSHA says that contagious diseases like tuberculosis, brucellosis, hepatitis A and/or the plague are considered work-related if the employee is infected at work—but the common cold (also a type of coronavirus) and Influenza are not.[3] This has led a lot of employers to naturally assume that COVID-19 would be included in with the common cold and Influenza exemptions—but it’s not. OSHA is taking the stance that COVID-19 is more in line with tuberculosis and the plague than with the common cold or influenza. Normally this wouldn’t be a big deal however, COVID-19 is totally different beast and it’s not because the virus is particularly exotic.

COVID-19 has managed to become a very polarizing, politicized topic which means anything associated with it is as well—and regulatory requirements aren’t exempt. These very strong feelings have permeated into an arena in which they don’t belong and what’s happening as a result is that employers are using their personal opinions about COVID-19 to create a false interpretation which is then being used to determine applicability of this part of the recordkeeping & reporting standards—and that’s not how any of this works. The regulations remain the same, no matter whether an employer agrees with them or not.

When making work relatedness decisions where cases of COVID-19 are concerned, the best course of action might be to convene a review panel to discuss each case individually (as long as the cases aren’t privacy cases) or, if the employer has a trusted company doctor, it might be prudent to ask them to weigh in. At the very least, employers should separate out the fact that the case is a COVID-19 related case and focus on exposures both inside and outside of work.

For example, if an employee tests positive for COVID-19 and there’s been no other positive cases reported for that employee’s entire work group or department but they have a family member or members who’ve recently tested positive, it’s a safe bet that this is not a work-related case. But if an employee tests positive on the heels of other positive results reported by workers in that employee’s work group or department, there’s a good chance the case is work-related.

While there’s never going to be a way to determine with 100% certainty how an employee contracted COVID-19, the best thing an employer can do is to be respectful and keep their personal opinions out of it.

Recording Criteria

Even with all the perceptions and opinions out there about what companies are supposed to do, it should be remembered that at the end of the day, the federal reporting and recordkeeping standards have not changed nor were they modified to accommodate COVID-19 cases. The three criteria for reporting and/or recording illnesses are the same today as they were prior to the pandemic. Where COVID-19 is concerned, if a worker is infected as a result of performing their work-related duties, the employer is responsible for recording it if all three of the following criteria are met:

1. The case is a confirmed case of COVID-19
2. The case is work-related (as defined by 29 CFR 1904.5); and
3. The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g., medical treatment beyond first aid, days away from work).[4]

If the fact that the case is COVID-related is causing a lot of issues, substitute COVID-19 for another illness like chicken pox or measles and work through the process that way. Sometimes removing or masking the source of the confusion helps resolve the issues.

Reporting Criteria

If a case is determined to be work-related and meets the recording criteria, it doesn’t necessarily mean it also must be reported to OSHA. Where COVID-19 is concerned, the two reasons an employer might report a case to OSHA is if the case results in a fatality and/or an in-patient hospitalization.

In-Patient Hospitalizations

Employers are required to report all in-patient hospitalizations within 24 hours of the work-related incident. For cases of COVID-19, OSHA considers an “incident” to be the actual exposure to the virus in the workplace. So, if an employee is hospitalized within 24 hours of becoming exposed to COVID-19 in the workplace, the employer is required to report this information directly to OSHA. Now, it would be virtually impossible for an employer to know when an employee was actually exposed to a virus in the workplace so, employers should use their best judgement.

Fatalities

If a work-related fatality occurs within 30 days of a work-related incident, employers have 8 hours to report the fatality directly to OSHA. Once again, the term “incident” is defined as the actual exposure to the virus in the workplace. So, if an employee contracts COVID-19 from a workplace exposure and within 30 days of that exposure dies as a result, the employer has 8 hours to report this information to OSHA.

No matter what type of work-related event caused an in-patient hospitalization or fatality, the requirement to report and/or record these cases haven’t changed and weren’t modified to accommodate COVID-19 cases. If after reading all of this, you think you might have reportable and/or recordable case of COVID-19 that didn’t get reported or recorded as required, there’s no time like the present. If it turns out that you didn’t need to report or record the case, then it can always be amended and at the very least, OSHA will appreciate you being forthcoming and admitting the oversight.

Vaccinations

As if trying to determine whether a case of COVID-19 is work-related or not and whether it needs to be reported to OSHA and/or recorded on the 300 log isn’t enough to stress you out, there’s another discussion we need to have—this time about vaccinations.

There are quite a few employers who are now requiring the COVID-19 vaccination and because this vaccination, like most others, isn’t free from complications and/or adverse reactions (see HHS’s Vaccine Adverse Event Reporting System website for some of what’s been reported), employers are left wondering what they’re supposed to do if an employee receives a company mandated COVID-19 vaccination and it results in a fatality or hospitalization or any other adverse medical reaction that requires medical treatment making it a recordable injury.

OSHA’s response to this is somewhat controversial because while they would absolutely require an employer to record adverse reactions or complications from any other company mandated vaccine that met the recordability criteria, they are not currently requiring employers to record these things if they resulted from the COVID-19 vaccination. Per OSHA, they will not enforce this part of the recordkeeping standard at least through May of 2022.[5]

Even though any recordable cases stemming from a mandated COVID-19 vaccine wouldn’t typically be visible to the workforce until the February of the following year when 300 logs are posted, OSHA is afraid that enforcing this part of the recordkeeping requirements will discourage employers from providing the COVID-19 vaccine and employees from receiving it. However, just because OSHA isn’t going to cite and/or penalize employers for this doesn’t mean employers can’t still record this information on their 300 logs, and they probably should record it if they’ve spent any amount of time talking about the importance of transparency in the workplace.

Regardless of whether an employer chooses to record this information or not, they should still make sure their employees have all the information they need to make an informed medical decision about the vaccination and that includes any risks that could be associated with receiving it. This is especially true if the vaccination is a condition of employment and workers will have to choose between getting vaccinated or ending their employment. Making sure workers have all the information, both good and bad, is absolutely necessary so they can make the best decisions for themselves and their families.

If you like what you’ve read in this article and would like more information on EHS Insight or are interested in seeing how EHS Insight might be able to help with your compliance needs, reach out to us. We’d love to hear from you!

[1] https://www.osha.gov/enforcement/2020-enforcement-summary
[2] https://www.osha.gov/enforcement/covid-19-data/inspections-covid-related-citations
[3] https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904.5
[4] https://www.osha.gov/coronavirus/faqs#reporting
[5] https://www.osha.gov/coronavirus/safework#role-employers-workers