UPDATED – On September 30, 2020, the Occupational Safety and Health Administration (OSHA) released new Frequently Asked Questions regarding an employer’s obligation to report to OSHA cases of work-related COVID-19. In the new FAQs, OSHA state that the term “incident” means “an exposure to SARS-CoV-2 in the workplace.”
In June, the State of California Department of Industrial Relations’ Division of Occupational Safety and Health (Cal-OSHA) issued guidance for employers with respect to recording and reporting of COVID-19 cases through a series of Frequently Asked Questions (“FAQs). The California guidance followed updates in May to the federal Occupational Safety and Health Administration (“OSHA”) enforcement guidance regarding an employer’s obligation to record cases of COVID-19 on the federal OSHA injury and illness logs. For more information about federal OSHA guidance regarding the recording of COVID-19 cases, see our blog post.
Employers in California should be aware of the differences between federal OSHA and Cal-OSHA reporting and recording requirements summarized below:
- Recording on Log 300: Cal-OSHA states that a COVID-19 case does not have to be confirmed through diagnostic testing to be recordable on the Log 300, which is a different recording standard than the federal OSHA requirements.
- Reporting known illness to Cal-OSHA within eight hours: Cal-OSHA also requires reporting of a serious illness at work (within eight hours of when the employer knew or should have known of the illness) even if the COVID-19 illness is not work-related. Federal OSHA requires reporting within this timeframe only if death resulted from a workplace illness or injury.
|Is Diagnostic Confirmation of COVID-19 Required to be Recordable?||No. A positive test result is not necessary to trigger recording requirements.||Yes. A COVID-19 case should generally be confirmed through testing to be recordable.|
|What is Considered “Work-Related” Exposure for Recordkeeping Purposes?||A COVID-19 case is presumed to be work-related if it results from events or exposures occurring in the work environment, unless an exception specifically applies.||A COVID-19 case is work-related where it is “more likely than not” that the case resulted from workplace exposure, based on reasonably available evidence and the absence of any alternative (nonwork) explanation.|
|When does COVID-19 Trigger an Immediate Reporting Requirement (within 8 hours) triggered?||Cal-OSHA requires employers report all serious illnesses, injuries or deaths occurring at work without making a determination about work-relatedness. A case of COVID-19 may meet the definition of serious illness.||Only if death resulted from the workplace illness or injury.|
The following reviews the Cal-OSHA FAQs and highlights the notable differences in its guidance around recording and reporting as compared to requirements under federal OSHA.
Cal-OSHA Guidance on Recording COVID-19 Related Cases
Cal-OSHA Guidance on Recording COVID-19 Related Cases
Employers with 11 or more employees in California must keep records of work-related injuries and illnesses on the Log 300 and submit reporting to Cal-OSHA. Employers with 10 or fewer employees and establishments in certain industry classifications are partially exempt from keeping Cal-OSHA injury and illness records. (See California Code of Regulations Employer Records of Occupational Injury or Illness for details on which employers are obligated to report, as well as other requirements).
Do California Employers have to Record COVID-19 Illnesses on their Log 300?
Yes. Covered California employers are required to record work-related deaths, injuries and illnesses and must record a work-related COVID-19 death or illness like any other occupational illness. To be recordable, an illness must be work-related and result in one of the following under section 14300.7:
- Days away from work.
- Restricted work or transfer to another job.
- Medical treatment beyond first aid.
- Loss of consciousness.
- A significant injury or illness diagnosed by a physician or other licensed health care professional.
If a work-related COVID-19 case meets one of these criteria, covered employers in California must record the case on their Log 300, 300A and 301 or equivalent forms.
Does a California COVID-19 Case have to be “Confirmed” to be Recordable?
Under federal OSHA guidance, a COVID-19 case should generally be confirmed through testing to be recordable. However, due to testing shortages and a variety of other reasons, not all persons determined to have COVID-19 have been tested. Therefore while Cal-OSHA considers a positive test for COVID-19 recordable, a positive test result is not necessary to trigger recording requirements.
There may be other situations in which an employer must make a recordability determination even though testing did not occur, or the results are not available to the employer. In these instances, the case would still be recordable if it meets any one of the other general recording criteria described above (such as resulting in days away from work). Cal/OSHA recommends employers err on the side of recording the illness.
How Does an Employer Determine if a COVID-19 Case is Work-related for Cal-OSHA Recording Purposes?
For Cal-OSHA recording purposes, an injury or illness is considered work-related if 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. An injury or illness is presumed to be work-related if it results from events or exposures occurring in the work environment unless an exception specifically applies. (See Title 8, section 14300.5(b)(2) for a list of exceptions).
A work-related exposure would include:
- interaction with people known to be infected with COVID-19;
- working in the same area where people are known to have been carrying COVID-19; or
- sharing tools, materials or vehicles with persons known to have been carrying COVID-19.
Given the disease’s incubation period of 3 to 14 days, exposures will usually be determined after the fact.
If there is not a known exposure that would trigger the presumption of work-relatedness, the employer must evaluate the employee’s work duties and environment to determine the likelihood that the employee was exposed during the course of employment. Employers should consider factors such as:
- 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.
Note: Cal-OSHA has a different standard for determining what is considered work-related vs. the federal OSHA requirements. For additional information about the federal standard and COVID-related updates, please see our blog post.
Is Time an Employee Spends in Quarantine Considered “Days Away from Work” for Recording Purposes?
No. 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.
Cal-OSHA Guidance on Reporting COVID-19 Cases
When is there an Immediate Requirement to Report a COVID-19 Illnesses to Cal-OSHA?
In addition to the separate, but related, recordkeeping requirements discussed above, employers must also report to Cal-OSHA any serious illness, serious injury or death of an employee that occurred at work or in connection with work within eight hours of when the employer knew or should have known of the illness. (See Title 8, section 342(a).) This includes a COVID-19 illness if it meets the definition of serious illness.
- A serious illness includes, among other things, any illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for anything other than medical observation or diagnostic testing. (See section 330(h).)
This means that if a worker becomes ill while at work and is admitted as in-patient at a hospital — regardless of the duration of the hospitalization — the illness occurred in a place of employment, so the employer must report the illness to the nearest Cal-OSHA office. Reports must be made immediately, but no longer than eight hours after the employer knows or with diligent inquiry would have known of the serious illness.
Does an Employer Need to Report to Cal-OSHA if the Employee Became Sick at Work but the Illness is not Work-related?
For reporting purposes, if the employee became sick at work, it does not matter if the illness is work-related. Employers must report all serious injuries, illnesses or deaths occurring at work without making a determination about work-relatedness. For some diseases such as COVID-19, associated respiratory symptoms such as difficulty breathing can be caused by a variety of occupational exposures. Cal-OSHA has taken that position, that it is important for employers to report these cases (in addition to recording on the log 300) so it can make the preliminary determination of work-relatedness.
Should an Employer Report an Illness to Cal-OSHA Even if COVID-19 has not been Diagnosed?
Yes, even if a suspected COVID-19 case has not been diagnosed by a licensed health professional, an employer should still report it to Cal-OSHA if the illness occurred in connection to any employment and it meets the definition of “serious illness” as described above (i.e., if it resulted in death or in-patient hospitalization).
Does an Employer Admit Liability when Reporting a Serious Illness to Cal-OSHA?
No. Reporting a serious illness is not an admission that the illness is work-related, nor is it an admission of responsibility.
How does the Governor’s Executive Order on COVID-19 and Workers’ Compensation Eligibility Affect Cal-OSHA Reporting and Recording Requirements?
Governor Newsom’s Executive Order N-62-20 (“Order”) addresses eligibility for worker’s compensation benefits. FAQs on the Order are available on the Department of Industrial Relations website. The Order does not alter employers’ reporting and recording obligations under Cal-OSHA regulations.
- FAQ – Recording and Reporting Requirements for COVID-19 Cases
- OSHA – Revised Enforcement Guidance for Recording Cases of COVID-19
- OSHA – COVID-19 Frequently Asked Questions
- California Governor Newsom’s Executive Order N-62-20
- Sequoia Blog – Revised OSHA Guidance for Recording COVID-19 Cases
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