Now You See Them, Now You Don’t: OSHA Removes Recently Published FAQs on Reporting Hospitalizations and Fatalities Due to COVID-19

The U.S. Occupational Safety and Health Administration (OSHA) has withdrawn from its website—without public explanation—a controversial interpretation of its requirement to report in-patient hospitalizations of employees who contracted work-related cases of COVID-19.

Last week, OSHA published a new series of answers to its COVID-19 Frequently Asked Questions (FAQs) relating to an employer’s obligation to report work-related cases of COVID-19 that lead to employee fatalities or in-patient hospitalizations. On Thursday, July 23, 2020, we published an article about the FAQs, entitled, “OSHA Publishes New FAQs on Reporting Hospitalizations and Fatalities Due to COVID-19.”

Since publication of that blog post, OSHA removed the reporting FAQs from its website.

Our analysis focused on OSHA’s interpretation of the requirement in 29 C.F.R. § 1904.39(b)(6) to report an employee hospitalization “if it occurs within twenty-four (24) hours of the work-related incident.” The now-withdrawn FAQs took the position that, with respect to a work-related case of COVID-19 disease, the “incident” was the employee’s positive diagnosis of COVID-19, rather than the employee’s exposure to coronavirus. We noted that, inasmuch as the natural interpretation of “incident” was the employee’s work-related exposure to coronavirus, not the diagnosis, the interpretation appeared to depart from the wording of the regulation it purported to interpret and was thus subject to legal challenge.

Although OSHA has not offered an explanation for removing the FAQs on reporting employee fatalities and in-patient hospitalizations, it appears that OSHA removed the questions and answers to permit further examination of the interpretations there. The withdrawal leaves only one FAQ on the reporting requirement—one that explains how to make the report to OSHA (that is, via phone call or online through electronic submission).

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.