Do employers have to report employee COVID-19 diagnoses, hospitalizations, and deaths?

The short answer, like many under the law, is maybe. Under 1904.39, employers must record and report the following to OSHA by calling or submitting a report online: a fatality (within 8 hours), in-patient hospitalization (within 24 hours), amputation (within 24 hours), or loss of an eye ( within 24 hours).

What if an employee is hospitalized due to COVID-19?

The incident is reportable only if the in-patient hospitalization occurs within 24 hours of a work-related exposure incident, and the employer “determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19.”

What if an employee dies of COVID-19?

The answer is similar. The death must occur within 30 days of work-related exposure, and the employer “determines afterward that the cause of death was a work-related case of COVID-19.” The fatality must be reported within 8 hours of learning of the death and its link to a workplace exposure.

How do employers investigate causation?

It seems unlikely that an employer is going to be able to definitively trace causation to a work-related exposure, given the numerous possibilities for exposure and infection in the general public. Even OSHA recognizes that community spread and the contagious nature of COVID-19 make it difficult to investigate causation. OSHA expects employers to do the following and decide if work-related exposure was “more likely than not” a cause:

  1. Conduct a reasonable investigation.
    1. Ask the employee how he thinks he contracted COVID-19.
    2. Discuss the employee’s work and off-duty activities that may have led to exposure to COVID-19.
    3. Investigate potential exposure in the employee’s work area.
  2. Consider all evidence reasonably available to the employer, and consider new evidence that arises.
  3. An employee’s COVID-19 illness is likely work-related if:
    1. Several employees in the same area all contracted COVID-19 around the same time with no alternative explanation.
    2. It is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 with no alternative explanation.
    3. The employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission with no alternative explanation.
  4. An employee’s COVID-19 illness is likely not work-related if:
    1. The employee is the only worker to contract COVID-19 in his vicinity, and his job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
    2. The employee, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (a) has COVID-19; (b) is not a coworker, and (c) exposes the employee during the period in which the individual is likely infectious.