Cal/OSHA issues problematic guidance for recording and reporting of coronavirus (COVID-19) cases



June 08, 2020

OSHA Alert

Author(s): Maritza Martin, Benjamin J. Kim

Employers in California should be aware of the differences between Fed/OSHA and Cal/OSHA reporting and recording requirements.

Through its website, Cal/OSHA recently issued FAQ guidance regarding recording and reporting requirements for coronavirus (COVID-19) cases.

Although California has its own state occupational safety and health (“OSHA”) plan, federal regulations dictate that states operating their own OSHA-approved state plans should have occupational injury and illness recording and reporting requirements that are substantially identical to federal OSHA’s (Fed/OSHA) requirements. See 29 CFR 1904.37. Specifically, state plans must have the same requirements as Fed/OSHA for determining which injuries and illnesses are recordable and how they are recorded. See 29 CFR 1904.37(b)(1).

Our previous alert covered Fed/OSHA’s revised recordkeeping guidance for COVID-19 issued on May 19, 2020. The updated federal guidance requires employers to make reasonable efforts to ascertain work-relatedness for recordkeeping purposes, despite the difficulties associated with identifying whether COVID-19 exposure occurred at work or elsewhere.

Substantial discrepancies between Fed/OSHA and Cal/OSHA recordkeeping

Despite federal regulations that mandate consistency across recordkeeping and reporting requirements in states with their own OSHA plan, Cal/OSHA’s recent FAQ guidance diverges quite substantially from Fed/OSHA.

Like Fed/OSHA, Cal/OSHA’s guidance says that California employers are required to record work-related COVID-19 fatalities, injuries, and illness on their OSHA 300 logs, if it resulted in:

  • Death
  • 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

Significantly, though, Cal/OSHA says that a COVID-19 case does not have to be confirmed through diagnostic testing to be recordable. This is a key requirement in Fed/OSHA guidance, but according to Cal/OSHA, a positive test is not necessary to trigger recording requirements. This will likely result in a significant number of recordable cases that would not have otherwise been recordable in OSHA 300 logs under the current Fed/OSHA guidance. In essence, Cal/OSHA recommends that employers err on the side of recordability and make a recordability determination using the general recording criteria, even in situations where testing did not occur or results are not available.

In addition to outlining similar criteria to Fed/OSHA for determining work-relatedness, Cal/OSHA’s FAQs do not set a limitation on the scope of employer investigations and states that employers can also 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 coronavirus

Reporting

While Fed/OSHA’s guidance addresses recordkeeping, it does not provide clarity on reporting obligations for COVID-19. In contrast, Cal/OSHA’s guidance does address reporting by outlining the general reporting requirements in 8 Cal. Code of Regulations Sections 342(a) and 330(h)—i.e.,employers should immediately report (or within eight hours) all serious injuries or illness occurring in the place of employment that require inpatient hospitalization.

Further, Cal/OSHA says that employers should report an illness even if COVID-19 has not yet been diagnosed by a licensed professional as long as it meets the reporting criteria mentioned above. This creates ambiguity and confusion on whether to report certain suspected COVID-19 cases under the state versus federal standard.

Takeaway

Putting aside the fact that Cal/OSHA does not have the authority to differ so substantially from Fed/OSHA’s reporting and recording requirements, Cal/OSHA’s guidance will likely result in significantly more cases being recorded on California OSHA 300 logs than anywhere else in the country. Employers in California should be aware of the differences in reporting and recording requirements as the broader interpretation by Cal/OSHA will likely mean that employers cannot excuse their lack of reporting or recording by saying they did not have confirmation of a positive coronavirus diagnosis.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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