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OSHA Removes Covid-19 Guidance from Website for More ‘Polish’

July 30, 2020, 8:44 PM

Federal workplace safety regulators say they hope to make information for employers on when to report Covid-19 hospitalizations “clearer” after the recent removal of guidance from an OSHA website.

Deleted over the July 25-26 weekend were six frequently asked questions for when an employer must report to the Occupational Safety and Health Administration that a worker was hospitalized for Covid-19.

The change may have been prompted by attorneys’ concerns that the guidance incorrectly interpreted OSHA’s rule requiring employers to inform the agency of a worker being hospitalized for an on-the-job injury or illness.

Employers who fail to quickly notify OSHA face fines as high as $134,937 in cases of willful or repeat violations of the notification rule.

The Department of Labor wouldn’t discuss the reasons for withdrawing the guidance. A DOL spokesperson in a written response Thursday said, “OSHA continues to refine the Frequently Asked Questions (FAQ) page and is working to make the FAQ clearer for the stakeholder community.”

Orlando Pannocchia, a senior attorney with the Department of Labor’s Office of the Solicitor specializing in OSHA issues, acknowledged during a July 28 legal webinar that the FAQs were removed.

“They took it down, and are going to reissue, and polish it more,” Pannocchia said.

The Clock Starts When

Attorney Gillian Egan, at Jackson Lewis P.C.’s New Orleans office, said her concerns are about when a 24-hour timeline for notifying the regulator begins.

There are two separate 24-hour periods in the regulation that employers have to look into when deciding whether and when they are obligated to report, Egan said.

Employers only have to report hospitalizations that occur within 24 hours of the work-related incident, and they are supposed to report those hospitalizations within 24 hours of when they learn of it, Egan said.

OSHA said in the removed FAQs that an employer would have to report hospitalizations no matter how long it had been since the workplace exposure, Egan explained.

The reporting rule (29 C.F.R. 1904.39) took effect in January 2015 and is intended to alert the agency to hazardous work sites that otherwise would go undetected. Once OSHA was notified, it could contact the employer about how the hazard was being corrected or open an inspection.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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