Analysis

Is OSHA's Virus Reporting Plan Failing Workers?

By Anne Cullen
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Law360 (October 9, 2020, 6:19 PM EDT) -- Whether the Occupational Safety and Health Administration's latest coronavirus guidance amounts to shrewd management of limited resources or a slap in the face to at-risk workers is up for debate. But it's clear that most employers will rarely, if ever, be required to tell OSHA if workers are hospitalized after catching COVID-19 on the job.

OSHA said on Sep. 30 that company leaders would only need to pick up the phone and call the workplace safety watchdog about a worker's COVID-19 hospitalization if the worker caught the virus at work within the past 24 hours.

As the Centers for Disease Control and Prevention says the amount of time between exposure to the virus and when symptoms appear is between two days and two weeks, attorneys for businesses and employees alike agree the daylong clock will curtail hospitalization reporting.

"There will be fewer reported cases of COVID-19 to OSHA because from what we know, exposures typically occur days or weeks before symptoms appear and then certainly before a hospitalization would appear," said Brad Hammock, co-leader of Littler Mendelson PC's workplace safety and health practice group. "So I think as a practical matter, defining incidents in the way that OSHA did will result in few reported in-patient hospitalizations."

Existing OSHA regulations tether illness and injury reporting requirements to "work-related incidents"; once such an incident occurs, it starts the regulatory clock on when the situation needs to be relayed to the agency. Reports can often trigger an on-site inspection, through which the agency aims to mitigate any immediate risks and prevent harm to other workers.

The agency had previously released guidance in late July on reporting work-related COVID-19 hospitalizations that stipulated the "incident" in such cases would be a confirmed diagnosis, not the workplace exposure. According to that advice, if an employee was admitted after catching the virus at work, the case was reportable if they had tested positive for COVID-19 within 24 hours of hospitalization.

However, OSHA quickly took that guidance down following complaints from industry advocates who said the interpretation didn't line up with its existing illness and injury reporting regulations.

The agency gave no formal reasoning for backtracking, but a U.S. Department of Labor official said during a webinar a few days later that regulators wanted to give the guidance more "polish."

OSHA's latest interpretation mirrors a suggestion floated by management-side law firm Ogletree Deakins Nash Smoak & Stewart PC when the initial guidance was pulled in July, attaching a new time frame that now hinges on when the worker was exposed on-site. That metric has drawn criticism from worker advocates.

"Employers will no longer have to notify the agency of severe cases of COVID," said National Employment Law Project worker health and safety program director Debbie Berkowitz. "It's just one more way the agency is completely failing to protect workers in this pandemic."

Berkowitz, who served as an OSHA official during the Obama administration, said the updated guidance will precipitate "a complete drop" in the number of work-related COVID-19 hospitalizations that businesses call in, because "OSHA just told employers that they don't have to report it anymore."

She characterized the move as a betrayal of the workers the agency is supposed to protect. "They've decided they don't even want to know when there are serious outbreaks in workplaces, and that they'll wait until they get reports of workers dead before they want to know any information," Berkowitz said.

When asked about the apparent discrepancy between the updated advice and what the CDC says about the coronavirus infection timeline, an OSHA spokesperson only commented that the agency's existing illness and injury reporting regulations say the requirements are triggered by a "work-related incident," not the appearance of symptoms.

Jason Schwartz, co-head of Gibson Dunn & Crutcher LLP's labor and employment practice, also said the new guidance would reduce the volume of calls coming into OSHA, but he said that could benefit the agency.

Clearer phone lines mean the watchdog can focus its resources on the most dire circumstances, he said. And he theorized that OSHA's new stance lets employers largely forgo calling because once more than 24 hours have elapsed since the workplace exposure, there's little for the agency to inspect if it visits the site.

"They've got a gazillion things to look at right now, and so they have to figure out a way of prioritizing where they can make the most impact for worker safety," Schwartz said. "It's not going to be trying to unearth a case that is some number of days or weeks old, because at that point, whatever they see is going to be a changed set of circumstances."

A deluge of hospitalization reports might be more than OSHA can handle, Hammock said.

"Given the number of hospitalizations that occur, it really could overwhelm the agency if all of these had to be reported," he said.

--Editing by Aaron Pelc and Jack Karp.

For a reprint of this article, please contact reprints@law360.com.

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