OSHA is telling employers to report workers hospitalized for Covid-19 only if it happens within 24 hours of workplace exposure to the virus.
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OSHA’s reinterpretation of a regulation regarding workers and Covid-19
BY DAVID MICHAELS / NOVEMBER 24, 2020
Workplace exposures continue to be a major driver of the coronavirus pandemic, something that the Occupational Safety and Health Administration (OSHA) should be on top of. But a reinterpretation of a reporting rule is making that all but impossible.
The workers who take care of our sick and elderly, who keep our families fed and provisioned, and who keep our transportation systems operating do their jobs at great risk of illness and death. Those jobs put them in close contact with other workers and the public, and they are often given inadequate personal protective equipment — or none at all. Many travel to and from work in crowded public or semi-private transportation. Since the virus does not stop at the exit of the factory or nursing home or prison or subway car, these workers bring the epidemic into their homes and communities.
Exposure to the virus has sickened hundreds of thousands of workers and killed many hundreds more. Nursing home operators, for example, reported 365,000 confirmed or suspected infections among their staff and more than 1,000 deaths between May and mid-October. The Food and Environment Reporting Network has compiled reports of more than 70,000 infections and 300 deaths among workers in the food industry. Both sets of statistics are incomplete and clearly underestimate the true toll. Many more workers in other occupations and industries have been made seriously ill by the virus, or have been killed by it, although the true numbers are unknown and only limited efforts are being made to collect more complete and accurate data.
Given the extent of workplace transmission, controlling exposure to SARS-CoV-2, the virus that causes Covid-19, in the workplace must be a prominent component of our efforts to stem the pandemic. Yet under the direction of Labor Secretary Eugene Scalia, OSHA, the primary federal agency with the authority to enforce safe conditions for workers, has come under sustained and justified criticism both for its meager enforcement activities and its refusal to issue an emergency temporary standard requiring employers to take specific steps to protect workers. OSHA has become primarily an advisory agency instead of an enforcement agency, offering voluntary guidance to employers instead of issuing enforceable standards.
For OSHA to intervene in workplaces where workers are being exposed to SARS-CoV-2, it needs to know how many workers are being infected, where they are located, and what conditions they are working under. One important tool for acquiring this information is a regulation the agency issued in 2014 when I was serving as assistant secretary of labor for occupational safety and health. That regulation, “Recording and Reporting Occupational Injuries and Illnesses,” requires employers to report worker fatalities to OSHA within eight hours of a worker’s death and to notify it of hospitalizations and amputations within 24 hours of the event.
The purpose of requiring employers to report the most severe work-related injuries and illnesses is to help OSHA more effectively target its enforcement and technical assistance activities to the most hazardous workplaces, as well as to engage those employers, encouraging them to better protect the safety of their employees. In accordance with this regulation, early in the pandemic OSHA reminded employers they were required under the recording and reporting rules to inform the agency of hospitalizations and deaths of workers with Covid-19.
The first of the few Covid-19-related citations that OSHA has issued to employers for violating its regulations was to a Georgia nursing home, which had delayed notifying OSHA that six of its workers had been hospitalized.
At the end of September, however, the Department of Labor suddenly withdrew the Georgia citation and announced an absurd reinterpretation of the reporting regulation under which employers are no longer required to report the most severe Covid-19 cases to OSHA. While the regulation clearly states that OSHA requires employers to report “all work-related in-patient hospitalizations, as well as amputations and losses of an eye, to OSHA within 24 hours of the event” (emphasis added), the agency is now telling employers that they must report worker hospitalizations for Covid-19 only if the hospitalization occurs within 24 hours of their workplace exposure to the virus, instead of within 24 hours of the employer learning of the hospitalization.
Reporting a worker’s hospitalization within 24 hours of a workplace incident is appropriate for traumatic injuries such as falling off a roof, but it makes no sense for Covid-19. It is generally impossible to identify the precise moment someone is exposed to Covid-19. As the country has seen in the case of President Trump, hospitalization for Covid-19 can occur several days after a person first develops symptoms, or even weeks, and symptoms do not appear until days after infection.
While Scalia has asserted that OSHA has all the tools it needs to ensure workers are protected, the agency’s new policy is yet one more decision suggesting that under his direction, OSHA is more concerned with hiding employee infections and shielding employers from their obligation to protect workers than with protecting workers from infection.
What the reinterpretation of the reporting regulation means is that Covid-related hospitalizations will no longer be reported to OSHA, seriously handicapping the agency’s ability to respond quickly and effectively to workplace outbreaks. This is a betrayal of the letter and the intent of the regulation. In the midst of the Covid-19 pandemic, in which workplace exposures play a central role in spreading the infection, OSHA has rejected a policy that lets it know where serious outbreaks are occurring. This new policy will impede efforts to protect workers not only from Covid-19, but also from other occupational diseases, including tuberculosis, silicosis, and lead poisoning.
In stark contrast, while OSHA is gutting federal requirements to report on their workers hospitalized with Covid-19, states are taking action to expand mandatory reporting of workplace cases by employers. For example, Virginia, California, and New Mexico have issued emergency regulations to require employers to report Covid-19 cases, regardless of whether the infection results in hospitalization, so a rapid investigation can be made.
The Biden-Harris administration will have the opportunity to enhance and strengthen the federal government’s efforts to control workplace exposure to Covid-19. Reversing this misinterpretation of OSHA’s reporting rule should be among the early actions it takes to reduce workplace transmission, save workers’ lives, and help the nation’s workplaces reopen and operate safely.
David Michaels is a professor in the Department of Environmental and Occupational Health at the Milken Institute School of Public Health at George Washington University. He was assistant secretary of labor for OSHA from 2009 to 2017, and is the author of “The Triumph of Doubt: Dark Money and the Science of Deception” (Oxford University Press, January 2020).