California's Department of Industrial Relations' Division of Occupational Safety and Health, also known as Cal/OSHA, has issued strict employer requirements for recording and reporting COVID-19 cases. Cal/OSHA's guidance differs in some regards from federal OSHA guidance. As counties continue to open their doors, employers return employees to work, and COVID-19 cases continue to rise, employers need to understand when to record and report COVID-19 illness.
The following Q and A explains when COVID cases must be recorded and/or reported to Cal-OSHA.
Q: Must an employer record a COVID-19 illness on its Log 300?
A:
Yes. A California employer** that is required to record work-related fatalities, injuries and illnesses must record a
work-related
COVID-19 fatality or illness like any other occupational illness. To be recordable, an illness must be work-related and result in one of the following:
- death;
- days away from work;
- restricted work or transfer to another job;
- medical treatment beyond first aid;
- loss of consciousness; or
- a significant injury or illness diagnosed by a physician or other licensed health care professional.
If any of these criteria are met, then a covered California employer must record the case on a Form
300
,
300A
and
301
, or equivalent forms.
**Certain employers with ten or fewer employees at all times during the last calendar year, and those in industries as delineated in the Cal/OSHA regulations, are exempt from this recording requirement.
Q: Does a COVID-19 case have to be confirmed by testing to be recordable?
A:
Not necessarily in California. Cal/OSHA considers a positive test for COVID-19 determinative of recording requirements. However, that is not always possible due to testing shortages and other reasons. A recording requirement may also be triggered when any of the following occur, as stated above: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed health care professional.
In contrast, federal OSHA guidance provides that a COVID-19 case should generally be confirmed through testing to be recordable.
Q: How does an employer determine if a COVID-19 case is work-related for recordkeeping purposes?
A:
For recordkeeping purposes, an injury or illness is considered work-related if an event or exposure in the work environment either (1) caused or contributed to the resulting condition, or (2) 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 applies, such as: at the time of injury or illness, the employee was present at work as a member of the public; signs or symptoms of the injury or illness surface at work but resulted from a non-work related event; or illness is the common cold or flu.
A work-related exposure in the work environment would include:
- interaction with people known to be infected with SARS-CoV-2 (the virus that causes COVID-19);
- working in the same area where people known to have been carrying SARS-CoV-2 had been;
- or sharing tools, materials or vehicles with persons known to have been carrying SARS-CoV-2.
Given the virus' incubation period of 3 to 14 days, exposures will usually be determined after the fact.
Q:
How does an employer know whether to record a case if it is not obvious whether the precipitating event or exposure occurred in the work environment or occurred away from work?
A:
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 their 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; and
- Whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19.
Q: Is time spent quarantining by an employee considered "days away from work" for recording purposes?
A:
No. Employee must have a work-related illness that required days away from work.
Q: When does an employer have to report a COVID-19 illness to Cal/OSHA immediately?
A:
In addition to the recordkeeping requirements discussed above, California 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 8 hours of when the employer knew or should have known of the illness. A COVID-19 illness qualifies as a "serious illness" which is defined as
requiring inpatient hospitalization for other than medical observation or diagnostic testing. Accordingly, if a worker becomes ill while at work and is admitted for as an in-patient at a hospital (regardless of the duration of the hospital stay), the illness occurred in a place of employment, and thus, the employer must report this illness to the nearest Cal/OSHA office.
Reports must be made immediately, but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the serious illness.
Q: If an employee becomes sick at work, but the illness is not work-related, must the employer report it?
A:
Yes. For reporting purposes, whether the illness is work-related does not matter if the employee became sick at work. No determination as to work-relatedness must be made if the serious injury, illness or death occurred at work.
Q: If an employee started to show symptoms outside of work, must the employer report it?
A:
Yes. An employer must report a serious illness if there is cause to believe the illness may be work-related, regardless of whether the onset of symptoms occurred at work.
Factors such as those considered for recording purposes should be evaluated:
- multiple cases in the workplace;
- 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; and
- whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19.
Q: What if the employer is uncertain whether the employee contracted COVID-19 at work?
A:
The employer should still report the illness to Cal/OSHA if it results in in-patient hospitalization for treatment and if there is substantial reason to believe that the employee was exposed in his/her work environment. The guidance provides that the employer should err on the side of reporting the illness to Cal/OSHA.
Q: If COVID-19 has not yet been diagnosed, must the employer report an illness?
A:
Yes. Even a suspected case of COVID-19 that has not been diagnosed by an licensed health professional must be reported.
Q: What if the employee was traveling?
A:
Injuries and illnesses that occur while an employee is on travel status are work-related if, at the time of the injury or illness, the employee was engaged in work activities "in the interest of the employer." Examples of such activities include travel to and from customer contacts, conducting job tasks, and entertaining or being entertained to transact, discuss, or promote business (work-related entertainment includes only entertainment activities being engaged in at the direction of the employer).
Q: What if the employee is working at home?
A:
Injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.
Q: Does an employer admit to liability when it reports a serious illness?
A:
No. Reporting a serious illness is not an admission that the illness is work-related, nor is it an admission of responsibility. This is significant for employers, particularly for workers' compensation purposes. As reported in our previous
newsletter
, in May 2020, Governor Newsom signed Executive Order N-62-20, which provides that under certain circumstances it is presumed that workers who contract a COVID-19-related illness between March 19 and July 5, 2020 have done so at work and are thus eligible for workers’ compensation benefits. The Guidance specifically states that Governor Newsom's Order does not alter employers' reporting and recording obligations under Cal/OSHA.
We will continue to keep you updated on any major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Janet Soultanian
Ballard Rosenberg Golper & Savitt, LLP
