California’s Requirements for Recording and Reporting COVID-19 Cases in the Workplace

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August 4, 2020

As more businesses open back up after stay-at-home orders are lifted, some companies will unfortunately face another challenge – employees testing positive for coronavirus (COVID-19). In the event of a positive COVID-19 case, these companies may understandably focus on making sure no one else has contracted the virus and ensuring the premises are safe for others, and may not even consider that they also have reporting and recording requirements under state law.

However, California’s Department of Industrial Relations’ Division of Occupational Safety and Health (Cal/OSHA) has implemented strict requirements for reporting and recording COVID-19 cases in the workplace.  Cal/OSHA has published a list of frequently asked questions on its website to explain these requirements.  Employers should be aware of these rules in the unfortunate event an employee contracts COVID-19.

RECORDING REQUIREMENTS

Do employers have to record COVID-19 illnesses on their Log 300?
Yes, California employers that are required to record work-related fatalities, injuries, and illnesses must record a work-related COVID-19 fatality or illness, just 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.

[8 Cal. Code Regs. § 14300.7.]

If a work-related COVID-19 case meets one of these criteria, then covered employers in California must record the case on their 300, 300A, and 301 or equivalent forms.

Certain employers with ten or fewer employees at all times during the last calendar year and/or those that are classified in specific industry groups are exempt from this requirement.  [8 Cal. Code Regs. §§ 14300, et seq.]

Does a COVID-19 case have to be confirmed to be recordable?
Not necessarily.  A COVID-19 case should generally be confirmed through testing to be recordable, but due to testing shortages and a variety of other reasons, not everyone determined to have COVID-19 will have been tested.

While a positive test for COVID-19 will definitely trigger recording requirements, employers may have recording requirements even when testing did not occur or the results are not available to the employer.

In these instances, the case would be still be recordable if it meets the criteria discussed above (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).  Cal/OSHA recommends erring on the side of recordability.

These California recording requirements are different from federal OSHA guidance, which states that a COVID-19 case should be confirmed through testing to be recordable.

How does an employer determine if a COVID-19 case is “work-related” for recordkeeping purposes?
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 one of the following exceptions apply:  1) at the time of the injury or illness, the employee was present in the work environment as a member of the general public rather than as an employee; 2) the injury or illness involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment; 3) the injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activity such as blood donation, physical examination, flu shot, exercise class, racquetball, or baseball; 4) the injury or illness is solely the result of an employee eating, drinking, or preparing food or drink for personal consumption (whether bought on the employer’s premises or brought in); 5) the injury or illness is solely the result of an employee doing personal tasks (unrelated to their employment) at the establishment outside of the employee’s assigned working hours; 6) the injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted; 7) the injury or illness is caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work; 8) the illness is a common cold or flu; or 9) the illness is a mental illness.  [8 Cal. Code Regs. § 14300.5(b)(2).]

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 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; and
– Whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19.

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.

REPORTING REQUIREMENTS

When do employers have to report COVID-19 illnesses to Cal/OSHA immediately?
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 eight hours of when they knew or should have known of the illness.  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 other than medical observation or diagnostic testing.  This means that if a worker becomes ill while at work and is admitted as an 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 this illness to the nearest Cal/OSHA office.

Reports must be made immediately, but not longer than eight hours after the employer knows or with diligent inquiry would have known of the serious illness.

What 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.  It is important for employers to report these cases to Cal/OSHA so that the Division can make the preliminary determination of work-relatedness.

What if an employee started to show symptoms outside of work?
Reportable illnesses are not limited to instances when the employee becomes ill at work.  Serious illnesses include illnesses contracted “in connection with any employment,” which can include those contracted in connection with work but with symptoms that begin to appear outside of work.  An employer should 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.

For COVID-19 cases, evidence suggesting transmission at or during work would make a serious illness reportable.  An employer should consider factors similar to those described above, such as:

– 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.

Even if an employer cannot confirm that the employee contracted COVID-19 at work, the employer should 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 the work environment.  Where there is uncertainty about whether an employee contracted COVID-19 at work, the employer should err on the side of reporting the illness to Cal/OSHA.

Should employers report an illness even if COVID-19 has not yet 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 as described above and if it resulted in death or in-patient hospitalization.

Is an employer admitting to liability when it reports a serious illness?
No.  Reporting a serious illness is not an admission that the illness is work-related, nor is it an admission of responsibility.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.