Federal guidance on whether and when employers must notify the U.S. Occupational Safety and Health Administration of workers being hospitalized or dying because of Covid-19 infections has been revised yet again.
OSHA released the latest changes, in the form of three frequently asked questions, Wednesday evening, marking at least the second time it has adjusted reporting requirements for employers during the pandemic.
The change also led OSHA to drop a reporting citation issued May 18 against a Georgia nursing home.
Generally, for any kind of on-the-job illness or injury that leads to hospitalization, OSHA requires employers to notify the agency within 24 hours of the hospital admission, if the admission was within 24 hours of the incident that led to the hospitalization.
The new guidance starts the 24-hour clock between the workplace incident and hospitalization when the worker has an on-the-job exposure to the virus. Previous guidance started the clock when a worker was diagnosed as having the virus.
The new FAQs also change guidance for when a fatality must be reported. Now, OSHA says employers must contact the agency if a worker dies within 30 days of an on-the-job exposure to the virus. The old guidance said OSHA must be notified if the worker died within 30 days of being diagnosed with the virus.
There’s been confusion among employers about how to apply the reporting rule to coronavirus cases. In late July, OSHA withdrew virus-related guidance after industry-side attorneys questioned whether it was consistent with regulations.
Art Sapper, with Ogletree Deakins P.C. in Washington, was among the attorneys who questioned OSHA’s earlier FAQs. Sapper welcomed the new guidance.
“To its credit, OSHA adopted an interpretation that adhered to the wording of its regulation,” Sapper said.
OSHA could had made even more policy changes, said Gillian Egan of Jackson Lewis in New Orleans.
“OSHA’s latest FAQs are a complete reversal from OSHA’s previous guidance, but the new FAQs comport with our reading of the reporting regulations,” Egan said in an email. “If OSHA’s intent is to treat COVID as a recordable/reportable illness, then we agree that exposure to the disease in the workplace should be the ‘workplace-related incident’ which starts the clock for reporting any COVID-19 related hospitalization or fatality.”
OSHA should go further and decide that Covid-related infections should be treated like the cold or flu and not be reportable or recordable because of the virus’s “infectious nature and the impossibility of determining definitively the source of any Covid-19 infection,” she said.
The new guidance for hospitalizations states, “If an employer learns that an employee was in-patient hospitalized within 24 hours of a work-related incident, and determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19, the case must be reported within 24 hours of that determination.”
Earlier guidance said an employer “must report the hospitalization within 24 hours of knowing both that the employee has been hospitalized and that the reason for hospitalization was COVID-19.”
The difficulties employers face trying to understand when to report a hospitalization was illustrated by OSHA’s decision to drop a reporting citation against Winder Nursing Inc., a Georgia nursing home that notified OSHA several days after workers were admitted to a hospital.
OSHA administrator Loren Sweatt mentioned the enforcement in congressional testimony as the first case to be brought against an employer for a Covid-19 related violation.
But on Wednesday, OSHA announced it was dropping the case, even though OSHA and Winder Nursing had reached an informal settlement and agreement to reduce the proposed fine from $6,506 to $3,904.
OSHA said that under the new guidance, the late reporting allegations were no longer valid. The agency didn’t provide additional details about the decision as requested by Bloomberg Law.
Winder Nursing officials didn’t respond to a phone call requesting comment.
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