Employers in California are subject to a layer cake of requirements to report suspected and diagnosed cases of COVID-19 in their workforce. Federal, state and local agencies each impose obligations differing from one to the other and most setting short deadlines for reporting. This blog post provides the information employers most need to know regarding the requirements in place statewide and in Southern California, in particular, along with suggested actions employers should consider in order to be prepared to comply.
[UPDATE AS OF OCTOBER 27, 2020: The California Department of Public Health posted on October 16 and then updated on October 19, 2020, Q&A Guidance on complying with AB 685, which requires reporting of certain cases to local health departments, employees, any union representative and the employer of subcontracted employees. The guidance may be found here and the Department’s definitions posted October 16, 2020 may be found here.]
Report COVID-19 Illness to Cal/OSHA — No Later Than Within Eight Hours
Employers must report to Cal/OSHA any “serious injury or illness” of an employee in California, including COVID-19, where the illness occurs in the workplace or in connection with work and requires inpatient hospitalization, according to the governing regulation. Hospitalization for any period satisfies that part of the requirement, although where the employee is hospitalized for only medical observation or diagnostic testing the employer is not required to report the case to the state.
Employers are required to report to Cal/OSHA any case of an employee suffering COVID-19 that qualifies as “serious illness” immediately, but no later than within eight hours of learning of the case or when they should have learned of it. Employers must report such incidents to their local Cal/OSHA district office.
Where an employer has cause to believe an employee’s death in the workplace or in connection with work was due to COVID-19, the employer is also subject to the reporting obligation.
Suspected Transmission of Coronavirus at Work
The obligation to report to Cal/OSHA is broad. For example, employers are not required to report only if the employee has been diagnosed with COVID-19 or the employer has confirmation that the employee contracted the virus at work. More broadly, employers are to report to Cal-OSHA where they have only “cause to believe” an employee may have contracted Coronavirus at work (and has been hospitalized), according to California Department of Industrial Relations guidance.
Factors employers should consider in determining whether they have “cause to believe” an employee may have contracted COVID-19 through work include:
— Whether there have been multiple cases of COVID-19 among workers at the place of employment.
— The extent to which the employee had contact through work with others, particularly the public.
— The extent to which the employee was protected by physical distancing and other government-approved COVID-19 prevention protocols in the workplace.
— Whether the employee had work-related contact with anyone who exhibited symptoms of COVID-19.
Suspected Infection Off the Job, but Illness at Work
Where an employee experiences serious illness while at work, including suspected COVID-19, but the employee likely contracted the virus off the job, the employer is also subject to the reporting requirement, according to the Department. In other words, employers are required to report cases of an employee exhibiting potential COVID-19 at work (so long as the employee was also hospitalized as discussed above) even where the employer has no evidence the illness is work-related. The Department’s position is that such circumstances constitute serious illness “occurring in” the workplace, and are thus subject to the reporting obligation.
Cal/OSHA prefers that employers report cases of COVID-related illness or death to the local Cal/OSHA district office by phone, but also accepts reports by email to email@example.com. An online tool for employers to identify their local office Cal/OSHA district office may be found here.
Report COVID-19 Death to OSHA — Within Eight Hours
Federal law requires that employers report to the Occupational Safety and Health Administration (OSHA) the death of any employee due to COVID-19 that occurs within 30 days of the employee’s exposure to Coronavirus at work. Employers must report such cases within eight hours of knowing both that the employee has died and that the cause of death was a work-related case of COVID-19.
Report COVID-19 Hospitalization to OSHA – Within 24 Hours
Employers must report to OSHA any employee having been admitted to a hospital as an in-patient where the hospitalization was due to COVID-19 and occurred within 24 hours of the employee’s exposure to Coronavirus on the job. Employers must make such reports to OSHA within 24 hours of learning both that the employee was in-patient hospitalized and that the reason for the hospitalization was exposure to the virus on the job.
Employers may report COVID-19 hospitalizations or deaths to OSHA by calling the nearest OSHA office, calling the OSHA 24-hour hotline at 1-800-321-6742 or online here.
On September 30, 2020, OSHA updated its Frequently Asked Questions on employer reporting obligations.
Report COVID-19 “Outbreak” to Local Public Health Departments – Within 48 Hours
As of January 1, 2021, employers will be required to report to local public health agencies any “outbreak” of COVID-19 in their workforce. For purposes of the new law, an “outbreak” in non-healthcare or non-residential congregate workplaces means three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period. Employers must make their reports to their local health department, which is most often the county health department, where the employees’ worksite is located, as well as to the local health departments where each of the diagnosed employees live. This requirement applies to all employers operating in California, regardless of how few or many employees they have.
My blog post last month more fully explains these new state-law requirements and gives action items to consider in preparing to meet these requirements. On October 7, 2020, the California Department of Public Health updated its COVID-19 guidance, including on the obligation to report outbreaks. The Department released on September 25, 2020 a helpful, 36-page “COVID-19 Employer Playbook” that provides guidance on the reporting obligation and other issues. Also see October 27, 2020 Update at the top of this post.
Southern California Reporting Requirements
Los Angeles County
Owners, managers and operators of businesses in Los Angeles County who know of three or more cases of COVID-19 among their employees must report the outbreak to the Los Angeles County Department of Public Health under the County Public Health Officer’s current order, most recently updated on October 6, 2020. The order does not set a specific deadline by which businesses must report to the Department. Reports are to be made by phone to the Department at (888) 397-3993 or (213) 240-7821. Violations of the County order may be prosecuted as misdemeanors, according to the order.
San Diego County
Employers operating in San Diego County must “promptly notify” the County Health and Human Services Agency when they become aware of any employee with a laboratory-confirmed diagnosis of COVID-19, pursuant to the County Public Health Officer’s order updated effective October 10, 2020. Reports may be made online here or by calling 888-950-9905. Employers must report the name, date of birth and contact information of the employee. Violations may be prosecuted as misdemeanors, according to the order.
Guidance released by Orange County provides that employers “should report” to the County Health Care Agency any cluster of three or more COVID-19 cases that occurs at a worksite within a two-week period. Reports are to be made by calling 714-564-8448. As of this posting, the Orange County Health Officer’s order, revised September 8, 2020, does not include a provision requiring employers to report COVID-19 cases among their workforces to the County.
Ventura and Riverside Counties
Likewise, as of this posting, the orders of Ventura County and Riverside County do not require employers to report COVID-19 cases among their employees.
Action Items to Consider
Takeaways from this post should include that a case of Coronavirus in the workforce may require an employer to make judgment calls about its reporting obligations within short deadlines and may require the employer to report any single case to more than one agency. In addition, employers should expect agency requirements to continue to evolve.
With those points in mind, action items employers should consider include:
- Identify now the agencies to which your organization may bear a reporting obligation. Make sure that someone in the business is responsible for monitoring for changes to the applicable reporting obligations or that you have engaged your employment counsel to do so.
- Implement systems to ensure that the information about your employees that may trigger an obligation for your organization to report is reaching the appropriate decision makers within the business and promptly.
- Train supervisors, managers and human resources personnel on the information and events that may trigger a reporting obligation that applies to your business.
This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.