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OSHA Rule Requires Health Employers to Track Worker Virus Data

June 14, 2021, 7:31 PM

The new OSHA Covid-19 health-care standard sets recordkeeping requirements for employers to track infections among their workers and for when the government must be notified of a death or a hospitalization.

The mandates detailed in the emergency temporary standard, released June 10, are separate from the Occupational Safety and Health Administration’s longstanding requirement for employers to record in “Form 300" logs any injury or illness that was treated with more than first aid or that led to a worker missing more than a day of work.

For a Covid-19 diagnosis to be recorded in a Form 300 log, the employer must determine the infection was work-related. But the new Covid-19 log entries in the health-care sector will be required for any worker who becomes infected, regardless of whether they contracted the virus at work or elsewhere.

The Covid-19 log must include the employee’s name; contact information; occupation; location where they worked; date of their last day at the workplace; date of diagnosis; and the date when they first had one or more Covid-19 symptoms, if any were experienced. The illness must be recorded within 24 hours of when the employer learns of the case.

Qualifying employers will have to be ready to start tracking and reporting cases 14 days after the emergency standard is published in the Federal Register and takes effect. The agency hasn’t announced a date when that will take place.

Employers that fail to record or report cases could be cited by OSHA, said Daniel Kaplan, a partner with Foley & Lardner in Madison, Wis., and co-chair of the firm’s labor and employment practice. He said he expects that any employer subject to the standard would be asked to provide a copy of the Covid-19 log as part of an OSHA inspection.

Contacting OSHA

The new emergency rule will apply to health-care employers with more than 10 workers who treat patients with confirmed or suspected cases of Covid-19 or whose workers could be exposed to the virus.

The standard also will require qualifying employers to develop a written infection prevention plan and provide paid leave to workers who contract Covid-19. The agency anticipates the rule will cover 10.3 million workers at 749,000 workplaces.

If OSHA requests a copy of the Covid-19 illness log, the employer can strike from the record the names of infected workers, contact information, and occupations, according to the standard.

While OSHA requires many employers to provide an annual summary of their Form 300 logs, there’s no such mandate for the Covid-19 log, Kaplan said.

The standard also sets a new threshold for when an employer must inform OSHA of a Covid-19 death or hospitalization, said Todd Logsdon, co-chair, in Louisville, Ky., of Fisher Phillips’ workplace safety practice group.

Employers will be required to report each work-related Covid-19 fatality or in-patient hospitalization no matter the amount of time between the workplace exposure and the death or hospitalization. Previously, a Covid-19 hospitalization only needed to be reported if it was within 24 hours of a workplace exposure, and a death if the worker succumbed within 30 days of exposure.

Qualifying health-care employers now must notify OSHA of Covid-19 fatalities within eight hours of learning about the death and about hospitalizations within 24 hours of learning of an admission.

The agency justified the new requirements in its preamble to the emergency temporary standard. It said it had identified numerous employee illnesses or deaths from Covid-19 in the health-care sector that weren’t reflected in From 300 logs because the employer wasn’t able to determine whether the illness or death was work-related.

“OSHA’s existing recordkeeping and reporting requirements are not tailored to address hazards associated with Covid-19 in the workplaces covered by the ETS,” the agency said. “As a result, they do not enable OSHA, employers, or employees to accurately identify and address such hazards.”

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

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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