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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
hospitalized and that the reason for the hospitalization was the result of the work-related incident see 29 CFR
1904.39a2, b7 and8. In nonCOVID cases, the work-relatedness of the injury is typically apparent immediately.
Since the beginning of the pandemic, the reporting of work-related COVID19
in-patient hospitalizations under 29
CFR 1904.39 has presented unique challenges. As noted above, for purposes of reporting COVID19
fatalities and in-patient hospitalizations, OSHA has interpreted the phrase the work-related incident in 29 CFR
1904.39b6 to mean an employees exposure to COVID19 in the work environment. Thus, in order to be reportable, an in-patient hospitalization needed to occur within 24 hours of an employees exposure to COVID19 in the work environment. Given the incubation period of the virus, and the typical timeframe between exposure and the emergence of symptoms serious enough to require hospitalization, it is extremely unlikely for an in-patient hospitalization to occur within 24 hours of an employees exposure to the virus.
To address these issues, paragraph r1ii does not limit the COVID19
reporting requirement to only those hospitalizations that occur within 24
hours of exposure, as in 29 CFR
1904.39b6. This change in the reporting requirement will result in OSHA making more determinations as to whether immediate investigations are needed at additional worksites. Given the severity of the disease, and how quickly it can spread, it is essential that remediation efforts at a workplace be undertaken immediately. As noted above, it is critical for OSHA to respond quickly to hazardous conditions where employees have been hospitalized. The elimination of the 24-hour limitation period will not only allow OSHA to receive more employer reports about work-related COVID19 in-patient hospitalizations and, as a result, shed light on where severe COVID19 events are occurring, but it will also enable the agency to respond more quickly and effectively to these situations.
Accordingly, employers must report each work-related COVID19 in-patient hospitalization to OSHA regardless of when the employees exposure in the workplace occurred paragraph r1ii. But consistent with OSHAs normal reporting requirements, when hospitalization for a work-related case of COVID19 does occur, the employer must report it within 24 hours of learning about the hospitalization.
Additionally, for purposes of this section, OSHA defines in-patient
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hospitalization as a formal admission to the in-patient services of a hospital or clinic for care or treatment see 29 CFR
1904.39b9 and 10. The determination as to whether an employee is formally admitted into the in-patient service is made by the hospital or clinic. Treatment in an Emergency Room only is not reportable.
I. Work-Relatedness Determinations Given the nature of the disease, and the extent of community spread, in some cases, it may be difficult for an employer to determine whether an employees COVID19 illness is workrelated, especially when an employee has experienced potential exposure both in and out of the workplace. For purposes of this ETS, when evaluating whether a fatality or in-patient hospitalization is the result of a workrelated case of COVID19, employers must follow the criteria in OSHAs recordkeeping regulation at 29 CFR
1904.5 for determining workrelatedness. Applying the criteria in 29
CFR 1904.5 under paragraph r of this standard is consistent with how employers make work-relatedness determinations when reporting fatalities and other serious events under 29 CFR
1904.39.
Under 1904.5, employers must consider an injury or illness to be workrelated if an event or exposure in the work environment either caused or contributed to the resulting condition, or significantly aggravated a pre-existing injury or illness. An injury or illness is presumed work-related if it results from events or exposures occurring in the work environment, unless an exception in 1904.5b2 specifically applies.
Under this language, an injury or illness is presumed work-related if an event or exposure in the work environment is a discernable cause of the injury or illness see 66 FR 66,943 December 27, 2001.
According to 29 CFR 1904.5b3, the work environment includes the employers establishment and any other location where work is performed or where employees are present as a condition of their employment. Under 29 CFR 1904.5b3, employers should evaluate the employees work duties and environment and determine whether it is more likely than not that exposure at work caused or contributed to the illness see 66 FR 595859
January 19, 2001.
Because of the typical incubation period of 3 to 14 days, an employees exposure to COVID19 will usually be determined after the fact. Employers must make reasonable efforts to acquire the necessary information to make goodfaith work-relatedness determinations
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under this section. In addition, the employer should rely on information that is reasonably available at the time of the fatality or in-patient hospitalization.
A work-related exposure in the work environment would likely include close contact with a person known to be infected with COVID19 or common high-touch areas or items. For example, although work-relatedness must be determined on a case-by-case basis, if a number of COVID19 illnesses develop among coworkers who work closely together without an alternative explanation, it is reasonable to conclude that an employees fatality or in-patient hospitalization is work-related. On the other hand, if there is not a known exposure to COVID19 that would trigger the presumption of workrelatedness, the employer must evaluate the employees work duties and environment to determine whether it is more likely than not that the employee was exposed to COVID19 during the course of their 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.
The extent and duration of time spent in a shared indoor space with limited ventilation.
Whether the employee had workrelated contact with anyone who exhibited signs and symptoms of COVID19.
Since 1971, under OSHAs recordkeeping system, employers have been making work-relatedness determinations regarding workplace fatalities, injuries, and illnesses. In general, employers are in the best position to obtain information, both from the employee and the workplace, necessary to make a work-relatedness determination. Although employers may rely on experts and healthcare professionals for guidance, the determination of work-relatedness ultimately rests with the employer.
OSHA anticipates that the vast majority of employers who are subject to the reporting requirements in paragraph r of this ETS are already familiar with OSHAs reporting requirements in 29
CFR 1904.39. In fact, many of the healthcare providers subject to this ETS
may have been involved in assisting non-healthcare employers in making work-relatedness determinations. OSHA
expects that healthcare employers will typically report confirmed cases of COVID19 among employees working in
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