Takeaways

Cal/OSHA requirements for recording confirmed COVID-19 cases are consistent with Federal OSHA guidance.
Employers are required to immediately report work-related cases of serious illnesses or death to Cal/OSHA.
Multiple diagnoses of COVID-19 within a short period of time among employees who work closely together would likely trigger the reporting requirement.

Recording Cases

Cal/OSHA “agrees with and follows” Federal OSHA guidance on the recording of confirmed COVID-19 cases. Under Federal OSHA guidance, a case is a confirmed case of COVID-19 as defined by the Centers for Disease Control and Prevention (the individual has at least one respiratory specimen that tested positive).

Accordingly, Cal/OSHA requires employers to record the illness if:

  1. The case is a confirmed case of COVID-19;
  2. The case is work-related, as defined by 8 C.C.R. section 14300.5; and
  3. The case involves one or more of the general recording criteria set forth in 8 C.C.R. section 14300.7) (g., medical treatment beyond first-aid, days away from work).

Note that under the guidance issued by Cal/OSHA, “[t]ime away from work taken by a worker to self-isolate or be quarantined without having a confirmed COVID-19 illness is not considered time away from work for recording purposes.”

What, then, constitutes a “work-related” illness? An illness is work-related “if an event or exposure in the work environment either caused or contributed to the resulting condition . . . .” [8 C.C.R. section 14300.5(a).] The regulation provides a number of exceptions for illnesses that occur in the work environment, but are not work-related. Notably, one such exception is an illness that “involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment”—this illness is not recordable. [8 C.C.R. section 14300.5(b)(2).]

While the regulation is generally clear about recording and reporting work-related illness, its application to COVID-19 is less clear, primarily because it is almost impossible to determine where, when, and how an individual contracted the virus. For cases where “it is not obvious whether the precipitating event or exposure occurred in the work environment or occurred away from work,” the employer “must evaluate the employee’s work duties and environment” to determine work-relatedness. [8 C.C.R. section 14300.5(b)(3).]

Reporting Cases

California employers are required to immediately report any work-related serious injury or illness or death “occurring in a place of employment or in connection with any employment.” [8 C.C.R. section 342(a).] These reports must be made to the nearest Cal/OSHA office “as soon as practically possible, but not longer than 8 hours after the employer knows or with diligent inquiry would have known” of the illness. [Id.] If a worker (a) becomes ill while at work, and (b) is admitted as an in-patient at a hospital, the illness “occurred in a place of employment” and the employer must report it. [Id.; 8 C.C.R. section 330(h).] This action is required by existing regulations; however, Cal/OSHA appears to divert from the regulations when it comes to COVID-19.

First, infectious diseases are reportable if the employee is infected at work. Whether an incidence of COVID-19 is work-related, “occurred in a place of employment,” or resulted from an infection at work is almost impossible to determine. However, Cal/OSHA’s guidance letter nevertheless prompts employers to report incidents of COVID-19, and even suggests that it, and not employers, should make the determination as to whether the illness is work-related: “[I]t is important for employers to report these [COVID-19] cases to Cal/OSHA and let the Division make the preliminary determination of work-relatedness.”

Second, if an infection occurs at work, an employer’s duty to report the illness still requires the employee be admitted to a hospital. Apparently casting aside the condition that an employee must become an in-patient in order to trigger the reporting requirement, Cal/OSHA interprets the “in connection with any employment” prong of the regulation to refer to “illnesses contracted in connection with work but with symptoms that commence outside of work.” The letter states employers “should” report “if there is cause to believe the illness may be work-related, regardless of whether the onset of symptoms occurred at work.” Cal/OSHA then reminds employers as follows: “It is important to remember that reporting a serious illness is not an admission that the illness is work related, nor is it an admission of responsibility.” While Cal/OSHA’s motivations may be noble, reporting is simply not required by the existing regulations unless an employee’s illness is work-related, and he or she is admitted to the hospital (“in-patient hospitalization for other than medical observation or diagnostic testing”). [8 C.C.R. section 330(h).]

While Cal/OSHA reaches beyond what the regulations require—suggesting employers must report confirmed COVID-19 cases even without a workplace connection, it does point to a scenario where such reporting would likely be required: “For COVID-19, evidence suggesting transmission at or during work would make a serious illness reportable. Examples of evidence include multiple suspected or confirmed cases among workers who work together or commingle at a job site, or a diagnosed worker who has regular, work-related close contact with the general public.” This fact pattern would likely trigger the “connection with any employment” condition for reporting purposes.

For more information, or to discuss regulatory agency guidance during the COVID-19 pandemic, please contact us.


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