A few years ago, there was a popular book entitled “The 48 Laws of Power” which offered guidance on how to handle difficult situations. One of those laws was to keep your hands clean, which during the current pandemic is sage advice literally and for California employers figuratively as well given the updated statewide industry guidance and reporting guidelines provided from Cal/OSHA related to COVID-19. (See link: https://www.dir.ca.gov/dosh/coronavirus/Reporting-Requirements-COVID-19.html)
On May 27, 2020, Cal/OSHA provided guidance on updated reporting guidelines that will affect employers big and small in the Golden State. Fortunately, there are not 48 new guidelines to take into account for Cal/OSHA reporting which is now broader than federal OSHA is some respects, but there is enough to keep employers busy as the reopening in California takes effect off with millions more workers expected back on the job soon.
The Difficult Made Easy. With an airborne disease such as COVID-19 it is almost impossible to determine how someone contracted it. Nevertheless, Cal/OSHA by providing reporting and recording guidelines for COVID-19, has made it easier to determine whether to report a potential case or not since it has taken much of the discretion away from the employer.
For instance, California employers going forward will need to record on their Log 300 all COVID-19 illnesses if there is a work-related confirmed case or positive test for COVID-19 of an employee involving any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness or significant injury or illness diagnosed by physician or other licensed healthcare professional.
But, this is where federal OSHA guidance and Cal/OSHA diverge since federal OSHA generally requires a COVID-19 case to be confirmed through testing, whereas Cal/OSHA states that even if testing is not available it is recommended to err on the side of recording if one of the six general recording criteria listed above are present, which is broader than Fed/OSHA. So far two million have been tested in California and that number is increasing by an average of 60,000 tests per day.
Previously, for record keeping purposes the employer did not have the burden put on it to determine if a COVID-19 case was industrially related. Now, Cal/OSHA has fine-tuned the decision making process and requires that various factors be considered for the determination. Such as, if there was a known exposure to persons infected with the virus that causes COVID-19 in the workplace or even working in the same area, this could lead to the illness being determined to be work-related. Likewise, if there is a sharing of computers, equipment, or work vehicles which may have exposed a worker to the virus. There will be a presumption by Cal/OSHA of work-related exposure unless an exception in 8 CCR section 14300.5(b)(2) specifically applies.
The more difficult are those in which there was not a known exposure that could trigger determination of work-relatedness such as the amount of contact a worker has with the general public, how stringent the safeguards were at the workplace in wearing masks and enforcing physical distancing and if the worker had contact with someone who exhibited the symptoms of COVID-19, which could include delivery persons or vendors.
The zone of safety is to record and report the above cases, keeping your hand clean with Cal/OSHA.
Not recordable for Cal/OSHA purposes are days away from work solely spent in quarantine with no work-related illness.
Timing Is Everything. Going forward employers must also report to Cal/OSHA immediately any cases of COVID-19 that are work-related and meet the definition of a serious illness that requires inpatient hospitalization for other than medical observation or diagnostic testing. This does not have to be an overnight or 24 hour stay. The report to the nearest Cal/OSHA office must be made within eight hours after the employer knows or should have known of the serious illness or death. Again this goes beyond the current federal OSHA guidelines which allows for reporting within 24 hours.
What if you are a general or special employer or a PEO? The zone of safety may require all involved employers to report any work-related Covid-19 illness to Cal/OSHA.
Don’t Play Doctor. An employee may become sick while at work and display symptoms of COVID-19. What is an employer to do in this situation? According to the Cal/OSHA guidelines for reporting purposes it does not matter if the illness is work-related, it triggers the reporting requirement by the employer so that Cal/OSHA can make the preliminary determination of work relatedness.
The factors that Cal/OSHA will use to make a preliminary work-relatedness determination are whether there are multiple cases in the workplace, the type, extent and duration of contact with others especially the general public, physical distancing and other controls as well as contact with anyone who exhibited symptoms of COVID-19.
This is applicable even if COVID-19 case has not been diagnosed by a licensed health professional as required under the federal OSHA guidelines.
Sometimes there is a reluctance to report a serious illness/injury as work-related because it is assumed that this is an admission of liability. This is not the case and there is no admission of responsibility, it is merely compliance with a mandatory reporting requirement.
One final point is Gov. Newsom’s Executive Order in May regarding the rebuttable presumption for workers compensation benefits and COVID-19. The Order does not alter or affect in any way a California employers reporting and recording obligations under Cal/OSHA regulations.
Good health to you and keep your hands clean!
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