We have seen a significant number of OSHA investigations in recent weeks in response to reports of employee deaths and illnesses due to COVID-19.  In the height of the pandemic, employers, including nursing homes, were unclear regarding their obligations to report employee incidents of COVID-19 to OSHA due to the difficulty in determining whether such cases were “work-related.”  Below we have outlined OSHA’s reporting requirements and expectations regarding investigations into whether COVID cases are work-related, as well as some practices in responding to OSHA investigations.  Going forward, we encourage employers to ensure they are meeting OSHA requirements and are prepared to timely respond to requests for information as penalties for such violations can be significant.

OSHA Requirements for Reporting

OSHA has a number of requirements with respect to reporting work-related injuries, deaths and illnesses.  In addition to the OSHA form 300 and 301 discussed below, OSHA mandates the reporting of work-related hospitalizations within 24 hours and deaths within 8 hours.  If a work-related incident does not immediately result in a fatality, it must still be reported within 30 days if it ultimately results in such.

The OSHA 300 Log of Work-related Injuries and Illnesses is a cumulative chart used to document work-related injuries and illnesses.  OSHA regulations detail the information that an employer is required to enter on the OSHA 300 Log form.  Each entry contained in the OSHA 300 Log form must be supplemented by the OSHA 301 Injury and Illness Incident Report, which provides more detail about each case.

The OSHA 300 Log and OSHA 301 Report must be completed within 7 calendar days of receiving “notice” that a covered employee has suffered a work-related injury or illness subject to reporting. OSHA imposes obligations to update OSHA 300 Logs to incorporate newly-discovered information or outcome changes during a five-year recordkeeping period.

Failure to properly maintain records can result in OSHA citations when OSHA can document either that the employer disregarded previous directives concerning the need to keep records, or the employer deliberately deviates from, or is otherwise indifferent to, OSHA’s recordkeeping mandates.

Work-related Illnesses or Fatalities Attributable to Covid-19

Complying with OSHA’s requirements to document work-related illnesses and deaths has been a challenge, especially in the earlier months of the pandemic, when little was known about COVID-19 transmission and cases were widespread.  According to OSHA, an injury or illness is considered “work-related” if exposures in the workplace:

    • Caused the injury or illness;
    • Contributed to the injury or illness; or
    • Significantly aggravated a pre-existing injury or illness.

Although OSHA bears the burden of establishing that the illness was work-related if it seeks to challenge an employer’s failure to properly record an event, employers are still required to show in all instances that they made a good faith attempt at determining  whether the illness was, in fact, work-related.  OSHA’s guidance states the circumstances that weigh in favor of work-relatedness.  For example, in the absence of an alternative explanation, OSHA has stated that COVID-19 illnesses are likely work-related when:

    • Several cases develop among those who work closely together.
    • It is contracted following close contact with a co-worker, or – in the case of a health-care provider – a patient or resident, who has a confirmed case of the virus.
    • If the affected employee’s job duties require frequent and close exposure to the public with ongoing community transmission.

Conversely, COVID-19 illnesses are likely not work-related when, for example:

    • The employee is the only worker to contract COVID-19 in the employee’s work area and job duties do not include frequent contact with the public, regardless of ongoing community transmission.
    • The employee, outside the workplace, closely and frequently associates with someone who is not a co-worker and has COVID-19.

OSHA guidance advises employers as part of the investigation to:

    • Ask the employee how they believe they contracted COVID-19.
    • Discuss with the employee which of their in-work and out-of-work activities may have led to their COVID illness.
    • Review the employee’s work environment for potential COVID exposure, including any other co-workers who may have been infected.

OSHA Investigations

To date, the OSHA-initiated investigations have been prompted by reports of employee deaths from COVID-19.  Employers are required to cooperate with OSHA in any such investigations.  At the outset of its investigation, OSHA will send a letter to an employer requesting information, which includes the number of employee deaths, the dates and nature of the deaths, and a statement as to whether the deaths were work-related (with supporting documentation).  Providers are required to respond within ten days.

Follow up requests for information are significantly more burdensome and include copies of all policies and training regarding PPE, incident reports, risk assessments, infection control procedures; descriptions of HVAC systems, floor plans and several other items.  With respect to nursing homes, requests may include a copy of the facility’s respiratory protection program.

Responses to OSHA inquiries must be approached with thoughtful and careful consideration and employers should be prepared to explain the reason a potential COVID-19 fatality was not reported. Legal counsel should be involved early in the process to ensure that responses to OSHA inquiries are accurate and provide sufficient information to hopefully avoid further investigation for possible violations.

Murtha Cullina’s Labor and Employment team is prepared to provide any guidance on these and related issues.