By Conn Maciel Carey’s COVID-19 Task Force
Many of you are likely knee-deep in ensuring that your facilities are in compliance with the various components of OSHA’s new Emergency Temporary Standard, with the July 6th compliance deadline upon us. Our CMC COVID-19 Taskforce has reviewed all 1,000+ pages of OSHA’s ETS and supporting documentation and has as good an understanding of what is required as one can have – although OSHA has left some big question marks and caused a fair amount of head scratching in some areas. To help you understand precisely what is required of your covered facilities, and to assist with compliance implementation, we have prepared summaries of the major requirements of the ETS. Look for our summaries here each day over the next week. The devil is in the details, however, so please reach out if you would like a more nuanced understanding of how the standard applies to your particular facility and what steps you need to take to ensure you are in compliance – and avoid an enforcement action under OSHA’s COVID-19 National Emphasis Program.
Here is a summary of the ETS requirements for reporting:
For fatalities, covered employers must report all work-related COVID-19 fatalities within 8 hours of learning of the reportable fatality. Unlike the requirement to report work-related fatalities under the existing injury and illness reporting standard (29 C.F.R. Section 1904.39), the reporting obligation is not limited to fatalities that occur within 30 days of exposure.
This means if these two factors are present, the case is reportable:
- The employee died from a confirmed case of COVID-19; and
- The cause of death was a work-related exposure to COVID-19.
For hospitalizations, covered employers must report all work-related COVID-19 in-patient hospitalization within 24 hours of learning of the reportable in-patient hospitalization. Similar to fatalities, OSHA did not include in the COVID-19 reporting standard the temporal boundary included in the existing Section 1904.39 reporting standard. Thus, the reporting obligation is not limited to in-patient hospitalizations that occur within 24 hours of exposure.
This means if the following factors are present, the case is reportable:
- The employee has been formally admitted to an in-patient unit of a hospital or clinic;
- For care or treatment;
- Due to a confirmed case of COVID-19; and
- The reason for the hospitalization is a work-related exposure to COVID-19.
In determining whether a case is work-related, the ETS does not appear to require anything new or different from the May 19, 2021 guidance, Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), regarding how to evaluate work-relatedness. The May 19 guidance, in pertinent part, provides the following instruction:
- COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
- An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.
- CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.
- If, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.
Employers should apply this guidance and the criteria established in 29 C.F.R. 1904.5 to make good faith determinations based on reasonable efforts to obtain information available at the time.
Finally, in accordance with the recent Letter of Interpretation issued at the request of Conn Maciel Carey LLP, an employer is required to make only one report of a single case of COVID-19 even if it results in a hospitalization and then becomes a fatality. If an employer makes a report of a COVID-19 in-patient hospitalization, it does not need to make an additional report if the employee subsequently dies from the illness.
We have published several articles about the other sections of the ETS, including:
- Hazard Assessments and COVID-19 Plans
- Physical Barriers
- Physical Distancing
- Face Masks, Respiratory Protection and Other PPE
Look for another blog tomorrow!