August 12, 2020

Volume X, Number 225

August 12, 2020

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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The U.S. Occupational Safety and Health Administration (OSHA) has withdrawn from its website—without public explanation—a controversial interpretation of its requirement to report in-patient hospitalizations of employees who contracted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 The now-withdrawn FAQs took the position that, with respect to a work-related case of COVID-19 disease, the “incident” was the employee’s positive diagnosis of COVID-19, rather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).

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 212

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About this Author

Davis Jenkins Associate Washington D.C. workplace safety and health,  federal and state OSHA compliance,challenging citations, and litigating OSHA
Associate

Davis represents and advises employers on matters of workplace safety and health.  His practice includes providing guidance on federal and state OSHA compliance, challenging citations, and litigating OSHA related matters before federal and state agencies and courts.

Prior to joining Ogletree Deakins, Davis served as an attorney-advisor in the U.S. Occupational Safety and Health Review Commission’s Office of General Counsel where he advised Commissioners on the disposition of pending cases at the review level.  His previous experience includes serving as a law fellow for the Legal...

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Arthur Sapper, Administrative and Regulatory Attorney, Ogletree Deakins, Law Firm
Of Counsel

Arthur G. Sapper is Senior Counsel in the Washington, D.C. office of Ogletree Deakins, where he practices administrative and regulatory law. Art focuses his practice on all areas of occupational safety and health (OSHA) law and mine safety and health (MSHA) law, including inspections, discrimination investigations, litigation, rulemaking, counseling and lobbying.

Art litigates regularly before the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission, the federal appellate courts and various administrative bodies. He is a frequent author for EHS Today magazine.

Art has testified several times before Congress on OSHA issues. He was chosen by EHS TODAY magazine as among “The 50 People Who Most Influenced EHS in 2012-13.” He was also so chosen in 2010 and 2011.

Before joining the Firm, Art held the position of deputy general counsel of the Occupational Safety and Health Review Commission. He is also a former special counsel and

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