By Conn Maciel Carey’s COVID-19 Task Force

As we previously reported, in late May, Cal/OSHA issued a new set of COVID-19 Recordkeeping and Reporting FAQs that represented a serious departure from federal OSHA’s guidance on that same subject.  Throughout the pandemic, federal OSHA has maintained that employers need only record and report COVID-19 cases that are:

1. Confirmed by a positive laboratory test of a respiratory specimen; and
2. “More likely than not” the result of a workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.

Cal/OSHA’s May 27th guidance, however, breaks from both of those key requirements for COVID-19 recordkeeping, rejecting the need for a confirmed case and flipping the burden of establishing work-relatedness on its head, establishing instead a presumption of work-related if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.

Aside from being bad policy that will result in many illnesses being recorded on 300 Logs only in California that were not actually COVID-19 cases, and/or that were not caused by exposures in the workplace, Cal/OSHA’s unique COVID-19 recording criteria are not permitted by law.

More COVID-19 cases on your logs can create significant risk of liability.  For example, there is no doubt an avalanche of wrongful death and personal injury suits waiting around the corner, and while recording an illness is not an admission of wrong-doing, it is an admission that the illness was likely spread in your workplace.  Plaintiffs’ attorneys will make hay of that to show your exposure control efforts were insufficient, or to show that the illnesses experienced by their clients (customers, contractors, family members of employees, and others whose suits would not be barred by workers’ compensation exclusivity) likely were also contracted in your workplace or because of your workplace.  And of course, more illnesses having to be recorded also creates more potential for Cal/OSHA citations for failure to record or failure to record timely or accurately.

The Coalition for Uniformity in COVID-19 Recordkeeping

Conn Maciel Carey organized and represents the Coalition for Uniformity in COVID-19 Recordkeeping, which is composed of a broad array of California employers impacted by Cal/OSHA’s COVID-19 recordkeeping requirements. Directly or through trade associations, the Coalition represents more than 20,000 employers with more than half a million workplaces and more than 5 million employees in California.  Included among our members are individual employers from the retail industry, supermarkets and grocery stores, and the automotive, aerospace defense, chemical manufacturing, petroleum refining, construction, pharmaceutical, agricultural, and airline industries.  The Coalition also is supported by the:

• California Chamber of Commerce
• California Retail Association
• Retail Industry Leaders Association
• National Retail Federation
• National Grocers Association
• Food Industry Association (FMI)
• American Fuel and Petrochemical Manufacturers; and
• Crane Owners Association.

In early July, the Coalition submitted a letter to the Division Chief at Cal/OSHA laying out precisely how and why Cal/OSHA’s COVID-19 Recordkeeping Frequently Asked Questions differ materially from the corollary federal OSHA requirements for logging COVID-19 cases, and why that is not permitted under the law.

In requesting that Cal/OSHA rescind its COVID-19 recordkeeping guidance and realign its recordkeeping requirements with federal OSHA’s, the Coalition explained:

“Cal/OSHA’s differing and inconsistent requirements will necessarily result in California employers recording COVID-19 cases on 300 Logs that would not be required to be and will not be recorded anywhere else in the country. This will undermine the purpose and benefit of recordkeeping for COVID-19 cases by contaminating the OSHA 300 Log data, rendering the data of little utility for multi-state employers, OSHA, the Bureau of Labor Statistics, labor unions, or researchers that will conduct COVID-19 related comparative analyses, risk assessments, and/or resource targeting. It is to avoid these very problems that OSHA promulgated a regulatory mandate preventing state recordkeeping regulations from differing from federal OSHA’s. Beyond this, Cal/OSHA’s different recordkeeping criteria will result in myriad negative consequences and unjustifiable burdens borne uniquely by California employers.”

Our letter to Cal/OSHA noted that, whereas in most instances, State OSH Plans are permitted to mandate that employers meet more stringent requirements than federal OSHA has set, that is not the case with respect to recording injuries and illnesses on 300 Logs.  Rather, OSHA’s recordkeeping regulation at 29 C.F.R. 1904.37(b)(1) provides:

State-Plan States must have the same requirements as Federal OSHA for determining which injuries and illnesses are recordable and how they are recorded.

In explaining the objective of these restrictions, OSHA stated in the Preamble to the 2001 Final Recordkeeping Rule that:

State Plans must have recording and reporting regulations that impose identical requirements for the recordability of occupational injuries and illnesses and the manner in which they are entered. These requirements must be the same for employers in all the States, whether under Federal or State Plan jurisdiction . . . to ensure that the occupational injury and illness data for the entire nation are uniform and consistent so that statistics that allow comparisons between the States and between employers located in different States are created.

Accordingly, whether an injury or illness is recordable is a regulatory requirement about which state plans may not be more restrictive.  The idea is that a recordable should be a recordable no matter where you are.  So, Cal/OSHA may not lawfully require employers to record an injury or illness if that same injury or illness would not be recordable in a federal OSHA state.

An outcome-based analysis of Cal/OSHA’s COVID-19 recordkeeping requirements vs. federal OSHA’s guidance will surely reveal that there are cases that will have to be recorded in California that would not be recordable in federal OSHA states.  Take the example of the employee who never gets a COVID-19 test.  No matter the origin of the illness, the severity and outcome of the illness, or any other factor, that case is 100% not a recordable COVID-19 case anywhere in the country, except potentially in California now, based on a subjective diagnosis.  Likewise, a common example we see is an  employee who tests positive for COVID-19 who had a very brief exposure to a co-worker who had previously contracted the virus while both were wearing respiratory protection, but the employee also lives with a spouse who contracted the virus a week earlier.  That employee’s COVID-19 illness would surely not but recordable in a fed OSHA jurisdiction, but would be presumptively recordable in California.  That is not lawful.

On July 16th, Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice, spoke on behalf of the Coalition at a meeting of the California Occupational Safety and Health Standards Board to present the Coalition’s concerns about Cal/OSHA’s unique COVID-19 recording requirements.  Here are talking points from that presentation.

Soon, members of the Coalition anticipate meeting with Cal/OSHA’s Division Chief to talk through the concerns presented by the Coalition and to hear Cal/OSHA’s response.  Should Cal/OSHA decline to realign its recording criteria with federal OSHA’s, the Coalition will evaluate whether to pursue a “Complaint About State Program Administration” (CASPA), which is a mechanism by which employers – or any individuals for that matter – that find problems with the administration of a state OSH Plan, can file a formal complaint with federal OSHA.  OSHA has a regulation that lays out the CASPA process, which provides:

Any interested person or representative of such person or groups of persons may submit a complaint concerning the operation or administration of any aspect of a State plan. The complaint may be submitted to the Assistant Regional Director for Occupational Safety and Health (hereinafter referred to as the Assistant Regional Director) or his representative in the Region where the State is located.

For purposes of a challenge to Cal/OSHA’s recordkeeping program, that would be filed with fed OSHA’s Region 9 (San Francisco) Regional Office.

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Reach out to any of the OSHA-specialist attorneys in Conn Maciel Carey’s national OSHA Practice Group if you have questions about:

1. Whether a specific injury or illness is recordable or reportable to Cal/OSHA;
2. When the report is actually due;
3. How to record the illness or make the report;
4. What information to share with Cal/OSHA in the report; and/or
5. How to manage Cal/OSHA’s response to the report.

We would love to be a resource for you, and would be happy to provide some free advice around these thorny recordkeeping and reporting issues.

For additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 Resource Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance, as well as COVID-19 recordkeeping and reporting flow charts.  Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.