The Independent Duties of Recording and Reporting Cases of COVID-19 to Cal/OSHA
As employers begin to re-open their businesses, now is a good time to refresh on the basics of the required recording of and reporting workplace injuries to Cal/OSHA, and in the context of COVID-19.
Recording Cases of Injury or Illness in the Workplace
All employers are required to record instances of a workplace injury or illness on their Cal/OSHA Form 300 when the incident is a new work-related case, and meets one or more of the “general recording” criteria below:
- one or more 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 health care professional
An injury or illness is considered “work-related” when “an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in Section 14300.5(b)(2) specifically applies.” 8 CCR 14300.5(a).
While it is expected that the California government will make it difficult to argue that COVID-19 is not work-related if an employee’s contracting COVID-19 has any connection to the workplace, currently, employers may be able to apply one of the exceptions from recording COVID-19 as a workplace injury if the injury or illness 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.
Ultimately, it will be on the employer to demonstrate that the employee’s exposure to COVID-19 “solely” occurred outside the work environment. This is not a simple conclusion that can be traced back to an employee’s recreational baseball game, or even a workplace heart attack that medical professionals determine to have been caused by systemic physiological deterioration, independent from the workplace environment.
Cal/OSHA provides the following guidance “when it is not obvious” whether the exposure occurred in the work environment.
“In these situations, you must evaluate the employee's work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.” 8 CCR 14300.5(b)(3)(emphasis added).
Employers are required to determine whether the exposure to COVID-19 was caused by the work environment. For healthcare workers and front-line responders, COVID-19 developing shortly after repeated exposure in the workplace to others with the disease will most likely lead to a determination that it is work-related, absent some other obvious source of exposure.
In contrast, and in a non-healthcare environment, an employee may very well not have contracted the disease from the workplace, especially if social distancing and other prudent precautions have been taken to address COVID-19 in the employer’s Injury and Illness Prevention Plan (IIPP). (Don’t forget to update your IIPPs! See link to prior article on IIPPs here.) In particular, infected employees with no work-related contact with other employees or third parties due to working from home will likely support a determination that the exposure was not “caused” or “contributed to” by the work environment. An employee, medical professional or health official that confirms that the employee most likely contracted it from someone else outside of work or someplace that the employee visited outside of work will provide further support that COVID-19 was not due to a workplace exposure.
Finally, OSHA has confirmed that COVID-19 is only recordable as a workplace illness if an employee is actually confirmed to have COVID-19, as defined by the CDC. Click here for more information. Certainly someone who simply exhibits symptoms of COVID-19 or otherwise feels sick is not, in itself, a triggering event that requires recording of COVID-19 on Form 300.
Reporting Serious Injuries and Illness to Cal/OSHA
Cal/OSHA requires employers to immediately report (via phone or email) a “serious injury or illness” to Cal/OSHA. Click here to find your nearest Cal/OSHA office to call in a report.
Employers need to remember that reporting injuries is a separate and completely independent requirement from the recording of the injury or illness on the Form 300. For instance, a common mistake that employers make is applying the same “work-related” criterion – to assess the need to report a serious injury.
For reporting a serious injury, there is no such “work-relatedness” assessment, nor any causation requirement at all. Any serious illness or injury that “occurs in a place of employment or in connection with any employment” must be reported. The Cal/OSHA Appeals Board has repeatedly stated that the cause of the injury is not a determining factor with regard to whether an employer must report a serious injury. Therefore, employers should purge themselves of any idea that an illness or injury needs to be “work-related” before reporting it to Cal/OSHA.
What Qualifies as a “Serious injury or illness” for Reporting Purposes?
As of January 1, 2020, a serious injury or illness is one that occurs in the workplace and requires “inpatient hospitalization for other than medical observation or diagnostic testing, or in which an employee suffers an amputation, the loss of an eye, or any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by an accident on a public street or highway, unless the accident occurred in a construction zone.” 8 CCR 330(h).
Therefore, if an employee falls ill during work (for whatever reason, including possible exposure to COVID-19) and is admitted as an inpatient to a hospital for other than medical observation or diagnostic testing, it is reportable to Cal/OSHA “immediately” or within the 8-hour maximum time limit.
Therefore, employers should remain vigilant and keep track of those employees that fall ill while at work and go to the hospital. An employer should follow-up to see whether the employee was admitted and/or tested positive for COVID-19. Likewise, if an employee leaves work with COVID-19 symptoms to self-isolate at home, follow-up with the employee to keep track of his or her condition and whether they are improving. If their symptoms do not improve and later are admitted to the hospital for inpatient care, it needs to be reported.
Keep in mind that Cal/OSHA incentivizes employers to take the reporting requirement seriously, and will impose a mandatory penalty of $5,000 for any failure to report. Make sure that you aren’t one of the employers that fails to report, and contact counsel for guidance on these or other OSHA laws.