Cal/OSHA Establishes a Presumption of Work Relatedness in new COVID-19 Recording and Reporting Guidance

June 2, 2020June 12, 2020Beeta B. Lashkari Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

As we previously reported, in early April, the Head of Cal/OSHA, Division Chief Doug Parker, provided feedback about Cal/OSHA’s COVID-19 Recordkeeping and Reporting expectations. The signal to employers back then was that Cal/OSHA would be following Federal OSHA’s guidance on when employers must record COVID-19 cases on their 300 Logs, and that is not very often.

Just last week, however, Cal/OSHA issued a new set of COVID-19 Recordkeeping and Reporting FAQs, indicating that it has changed course from Division Chief Parker’s April letter. This move comes only a few days after Fed OSHA reversed course with respect to its own COVID-19 Recordkeeping and Reporting guidance.

To be clear, while Fed OSHA’s latest COVID-19 Recordkeeping guidance does retreat from some of the early relief OSHA had offered employers, in substance, it merely changes the landscape around the edges — requiring more employers to analyze work-relatedness for COVID-19 cases. Still fed OSHA only requires recording or reporting COVID-19 cases where it is “more likely than not” that a COVID-19 case resulted from workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.

Among other stark differences, Cal/OSHA’s new guidance flips the burden of establishing work-relatedness on its head. Now, according to Cal/OSHA, a COVID-19 case in California will be presumed to be work-related if any workplace exposure is identified, even if the cause of the illness is more likely attributable to a non-workplace exposure.

Confirmed Case

Unlike Fed OSHA’s previous and current recordkeeping guidance, Cal/OSHA’s FAQs now make clear that Cal/OSHA does NOT require a positive test for COVID-19 to be necessary to trigger recording requirements. Cal/OSHA states: Continue reading →

Reporting In-Patient Hospitalizations to OSHA: Common Misunderstandings and Mistakes

October 23, 2017August 29, 2019Eric J. Conn 6 Comments

By Eric J. Conn and Lindsay A. DiSalvo

The regulatory requirement at 29 C.F.R. 1904.39, OSHA’s Fatality and Serious Injury Reporting Rule, which requires employers to report to OSHA certain in-patient hospitalizations, may seem straightforward, but there are several nuances employers routinely miss that affect the determination whether a hospitalization is actually reportable to OSHA.

Although failing to timely report a reportable hospitalization can be cited, and could set up an employer for costly Repeat violations, over-reporting has its own significant consequences. Reporting hospitalizations very often triggers an on-site enforcement inspection, and OSHA issues a citation approximately 75% of the time it conducts an inspection (with an even higher percentage for incident-related inspections). Moreover, at least 85% of OSHA citations are characterized as Serious, Repeat or Willful, and OSHA’s civil penalty authority has skyrocketed by 80% in the past two years. Accordingly, it is critical that employers understand the intricacies of what makes an employee’s visit to the hospital a reportable event, and conversely, what does not, so as to avoid unnecessary and costly reports to OSHA.

As we outlined in a prior article discussing OSHA’s updated Fatality and Serious Injury Reporting Rule, under the current reporting requirements, employers must:

“within 24 hours after the in-patient hospitalization of one or more employees [that occurs within 24 hours of the work-related incident] . . . report the in-patient hospitalization . . . to OSHA.”

This is a significant change from the prior reporting rule, which required a report to OSHA only if three or more employees were hospitalized overnight. It was extraordinarily rare that a single workplace incident resulted in the overnight hospitalization of three or more workers, and so the instances of reporting under that rule were infrequent. The new rule, however, requires a report to OSHA for the hospitalization of a single employee, which has opened the door to thousands more incidents that must be evaluated for possible reporting.

Although the current regulation has increased the number of employee hospitalizations that are being reported to OSHA, many of those incidents reported to OSHA did not actually meet the criteria for reporting, based on a very particular definition of hospitalization and a limited time period for when the hospitalization must occur. In other words, many incidents are being reported to OSHA (effectively inviting OSHA to conduct a site enforcement inspection) that should not have been reported at all.

What Is an “In-Patient Hospitalization”? Continue reading →

Slicing the Nuances of OSHA’s Amputation Reporting Requirements

December 1, 2015October 16, 2018Lindsay A. DiSalvo 3 Comments

By Eric J. Conn and Lindsay A. Smith

Under OSHA’s new injury and fatality reporting rules, amputations have become a specific type of injury that must be reported to OSHA, regardless of whether the employee is hospitalized. Specifically, OSHA amended its reporting rule at 29 C.F.R. 1904.39 (“Reporting fatalities, hospitalizations, amputations, and losses of an eye as a result of work-related incidents to OSHA”) to read, in pertinent part: Reporting 3.JPG

“Within twenty-four (24) hours after … an employee’s amputation …, as a result of a work-related incident, you must report the … amputation … to OSHA. . . . For an … amputation …, you must only report the event to OSHA if it occurs within twenty-four (24) hours of the work-related incident.”

The long and short of the new reporting requirement is that an amputation constitutes an automatic report to OSHA even if it does not result in a hospitalization or any days away from work, or even require medical treatment beyond first aid. There are, however, several key nuances that employers must be aware of before they pick up the phone to call OSHA.

What Types of Injuries Should be Reported as an Amputation?

As an initial matter, an employer must understand what constitutes an amputation. The rule defines “amputations” as:

“[T]he traumatic loss of a limb or other external body part. Amputations include a part, such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially); fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached. Amputations do not include avulsions, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth.”

Although this definition may seem straightforward, there is ambiguity around the distinction between a “partial amputation” and an avulsion or laceration. Based on OSHA’s definition, the term “amputation” would require Continue reading →

OSHA’s New Hospitalization, Amputation, and Fatality Reporting Rule: Time to Add OSHA to Your Speed Dial

September 15, 2015August 5, 2019Amanda Strainis-Walker Leave a comment

By Eric J. Conn and Amanda R. Strainis-Walker

On New Year’s Day 2015, the Occupational Safety and Health Administration’s (OSHA) new serious injury and fatality reporting rule became effective, significantly revising the triggering events for reporting workplace accidents to OSHA under the Agency’s Injury and Illness Recordkeeping regulations at 29 C.F.R. 1910.104, et seq.

New Injury and Illness Reporting Rule

The new regulations differ from the long-standing incident reporting rule in four ways:

Lower the threshold for proactively reporting a catastrophic incident from the hospitalization of three or more employees to the hospitalization of a single employee;

Add amputations (including partial amputations) and loss of an eye to the types of injuries that employers must proactively report;

Introduce an internet portal for employers to submit reportable events; and

Require publication of the reporting events on OSHA’s public website.

Requirements of the New Reporting Rule. The reporting rule has been long-referred to informally as the “Fat-Cat” rule because it requires employers to report to OSHA all incidents that result in an employee fatality (Fat) or a catastrophe (Cat). The new regulation redefines catastrophe. Historically, a catastrophe had been defined as an incident that resulted in the overnight hospitalization for treatment of three or more employees. The Agency views the new report triggering events as indicative of serious hazards at a workplace. Assistant Secretary of Labor for OSHA David Michaels explained that:

“hospitalizations and amputations [are] sentinel events, indicating that serious hazards are likely to be present at a workplace and that an intervention is warranted to protect the other workers at the establishment.”

In addition to lowering the threshold from three to one employee hospitalizations, OSHA also changed the definition of “hospitalization.” Historically, an employee’s overnight hospital stay triggered the reporting requirement. Under the new rule, whether the hospitalization is a reportable event turns not on whether the employee stays overnight, but rather, whether the employee is formally admitted to the “in-patient” service of the hospital or clinic. The visit, however, must involve medical care after the in-patient admission. A hospital visit only for observation or diagnostic testing, even if it involves in-patient admission, does not constitute a reportable event.

The concepts of “formal admission” and “in-patient service” seem to be causing significant confusion in the new rule’s early stages. While OSHA continues to Continue reading →