Whether they have remained open during the COVID-19 pandemic or sought to reopen after pandemic-related closures, employers have had to monitor the constantly evolving and often confusing guidance from the Occupational Safety and Health Administration (OSHA), the Centers for Disease Control and Prevention (CDC) and other federal and state entities. OSHA has recently fined numerous employers for their failure to comply with the Occupational Safety and Health Act, thrusting into the spotlight employers' obligations, including those relating to the wearing of masks, record keeping, recording workplace COVID-19 infections, and reporting work-related inpatient hospitalizations and deaths.
Masks have become a part of everyday life given CDC recommendations and state and local orders, yet employers often are unaware of or misunderstand their obligations when employees wear masks. The applicable OSHA obligations associated with different types of masks are summarized below.
Another potential trap for unwary employers is the requirement that OSHA-covered employers retain employee medical records. As part of their workplace safety measures, and in compliance with numerous state and local orders, many employers have implemented health-screening procedures that include temperature checks for all individuals entering the workplace.
OSHA has indicated that it is permissible for employers to conduct health screenings that include temperature checks. If employers create records of the results of any health-screening measures and/or temperature checks, such records may qualify as medical records under OSHA's Access to Employee Exposure and Medical Records Standard, which requires employers to retain medical records for the duration of the employee's employment plus 30 years and to follow confidentiality requirements. Because they are not required to make a record of employees' temperatures, employers should consider whether it makes sense to create records of any health screenings and/or temperature checks given the potential additional burdens imposed by doing so, or rather to simply review and respond to health-screening results in real time without tracking or recording the data.
Employers also have struggled with deciding whether to record COVID-19 cases in their workplace on their OSHA 300 logs given the difficulty in determining whether such cases are actually work related. In May, OSHA issued guidance for employers grappling with making such determinations, which we previously covered here. Note that employers that are very small or in certain low-hazard industries are partially exempt from OSHA's record-keeping requirements.
In addition to recording requirements, employers (including those partially exempt from OSHA's record-keeping requirements) also may have an obligation to report to OSHA (by telephone or through its website), within certain time frames, any work-related inpatient hospitalizations or fatalities caused by COVID-19.
OSHA regulations require employers to report to OSHA any inpatient hospitalization of an employee resulting from a work-related incident (i.e., event or exposure) if the inpatient hospitalization occurs within 24 hours of the work-related incident or, in the case of a fatality, the fatality occurs within 30 days of the work-related incident. Although OSHA has released conflicting guidance on this issue, most recently, on September 30, it published a new series of answers to its "COVID-19 Frequently Asked Questions," clarifying that the work-related "incident," which triggers an employer's reporting obligation, is an employee's exposure to COVID-19 in the workplace. This new guidance means that most employee inpatient hospitalizations, even if they arise from work-related exposures, will not be reportable. For example, if two employees are exposed to COVID-19 in the workplace on Monday and are admitted to the hospital on Tuesday and Wednesday, respectively, only the case of the first employee admitted to the hospital would be reportable to OSHA (assuming the employer determines the infection was work related) because the second employee's inpatient hospitalization did not occur within 24 hours of the exposure on Monday. Note, however, that if either employee dies within 30 days of that person's exposure, such fatality would be reportable.
It is important that employers keep their reporting requirements in mind because of the short time periods within which they must make such reports to OSHA. Employers are required to report employees' inpatient hospitalizations resulting from work-related COVID-19 exposures within 24 hours and fatalities resulting from work-related COVID-19 exposures within 8 hours.
The COVID-19 pandemic has presented employers with challenges and obligations many have never previously had to face, including the workplace safety mandates imposed by OSHA regulations. Although this may be uncharted territory for many employers, compliance is critical as the pandemic continues. Employers implementing or revising safety policies and procedures should consult with counsel to ensure compliance with applicable OSHA, CDC, and state and local guidance.
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For more Day Pitney alerts and articles related to the impact of COVID-19, as well as information from other reliable sources, please visit our COVID-19 Resource Center.
COVID-19 DISCLAIMER: As you are aware, as a result of the COVID-19 pandemic, things are changing quickly and the effect, enforceability and interpretation of laws may be affected by future events. The material set forth in this document is not an unequivocal statement of law, but instead represents our best interpretation of where things stand as of the date of first publication. We have not attempted to address the potential impacts of all local, state and federal orders that may have been issued in response to the COVID-19 pandemic.
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