Last week, the Division of Occupational Safety and Health of California (Cal/OSHA) updated its website, providing new COVID-19 reporting and recordkeeping requirements for California employers. Cal/OSHA’s new “Recording and Reporting Requirements for COVID-19 Cases: Frequently Asked Questions” (Cal/OSHA FAQ Guidance) places additional obligations on California employers that diverge in parts from the updated requirements imposed under the federal Occupational Safety and Health Administration (OSHA) guidance.
Updates to OSHA’s COVID-19 Reporting Requirements
On May 19, 2020, OSHA issued its most recent guidance on COVID-19 recordkeeping. The guidance is effective during the course of the pandemic, starting on May 26, and updates and expands on obligations the agency previously outlined in April.
Under OSHA’s recordkeeping requirements, employers are required to record workplace illnesses, except for employers with 10 or fewer employees and employers in certain low-risk industries that have no recordkeeping obligations under OSHA. The latter must report work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation or loss of an eye. COVID-19 is a recordable illness and, thus, employers are responsible for recording cases of COVID-19 if:
On April 19, OSHA issued additional guidance that temporarily modified the recordkeeping requirement during the pandemic, relieving most employers of the duty to evaluate work relatedness. The May 19 memo added additional guidance and requirements on how employers are required to determine whether employee COVID-19 illnesses are work-related and thus recordable, requiring an individualized work-relatedness analysis for all industries. OSHA 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 (nonwork) explanation for the employee’s illness.
New Cal/OSHA FAQ Guidance
The new Cal/OSHA FAQ Guidance differs from the updated guidance provided by OSHA, placing additional burden on California employers. Notably, the following are some of the additional requirements:
- Presumption that COVID-19 is work-related: The new Cal/OSHA FAQ Guidance notes that a COVID-19 case is presumed to be work-related if any COVID-19 workplace exposure is identified. This is regardless of other attributable nonworkplace exposure. Specifically, the new Cal/OSHA FAQ Guidance identifies the following factors as reflecting a work-related exposure:
- The type, extent and duration of contact the employee had at the work environment with other people, particularly the general public
- Physical distancing and other controls that impact the likelihood of work-related exposure
- Whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19
See Title 8 Section 14300.5 for details and exceptions. The Cal/OSHA FAQ Guidance notes that if any of the aforementioned factors are present, then there is a presumption of work-related exposure.
- Additional recordkeeping requirements: The new Cal/OSHA FAQ Guidance no longer requires a positive COVID-19 test to trigger an employer’s recording and reporting obligations. Rather, the response to FAQ number 2 notes that in part due to the testing shortage, not all persons determined to have COVID-19 have been tested. Thus, it puts the burden on the employer to make the recordability determination even absent a positive COVID-19 test, noting: “the case would still be recordable if it meets any one of the other general recording criteria [(death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed healthcare professional)], such as resulting in days away from work. Cal/OSHA recommends erring on the side of recordability.”
- Quarantine days away from work: The new Cal/OSHA FAQ Guidance notes that the time employees spend in quarantine is not considered “days away from work” for recording purposes, unless “the employee also has a work-related illness that would otherwise require days away from work, time spent in quarantine is not ‘days away from work’ for recording purposes.”
- Reporting obligations: The new Cal/OSHA Guidance also devotes a section to reporting COVID-19 cases. It includes information on when employers have to report COVID-19 illnesses, confirming that those obligations are again broader than what is required under OSHA. Under Cal/OSHA, any COVID-19 cases that result in an in-patient hospitalization or the death of an employee (if the illness either occurred in connection with work), must be reported within 8 hours after the employer knows or with diligent inquiry should have known of the serious illness.
Employers should closely read and review the guidance by OSHA and Cal/OSHA, particularly as each agency has been updating its requirements. Manatt’s team of labor and employment attorneys are able to assist employers as they navigate through these and other new regulatory requirements triggered by COVID-19.
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