Under California Division of Occupational Safety and Health (Cal/OSHA) regulations, California employers are required to record work-related fatalities, injuries and illnesses, and must record a work-related COVID-19 fatality or illness like any other occupational illness. (Cal. Code Regs., tit. 8, § 14300.4(a).) To be recordable, an illness must be work-related and result in one of the following:
- Days away from work.
- Restricted work or transfer to another job.
- Medical treatment beyond first aid.
- Loss of consciousness.
- A significant injury or illness diagnosed by a physician or other licensed health care professional. (Cal. Code Regs., tit. 8, § 14300.7(b)(1).)
If a work-related COVID-19 case meets one of these criteria, then the employer must record the case on their Form 300. (Id., subd. (b)(2).) A COVID-19 case with a confirmed positive test result is presumed to be recordable if it meets the definition of “work-related.”
All work-related illnesses and injuries recorded on a Form 300 must be reported to Cal/OSHA annually in the summary Form 300A, which must be submitted to Cal/OSHA by February 1 of the next calendar year. (Cal. Code Regs., tit. 8, § 14300.32(a).)
Determining if a COVID-19 infection is work-related:
For recordkeeping purposes, an injury or illness is considered work-related 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. (Cal. Code Regs., tit. 8, § 14300.5(a).) An injury or illness is presumed to be work-related if it results from events or exposures occurring in the work environment. (Id.)
A work-related exposure in the work environment would include interaction with people known to be infected with SARS-CoV-2 (the virus that causes COVID-19); working in the same area where people known to have been carrying SARS-CoV-2 had been; or sharing tools, materials or vehicles with persons known to have been carrying SARS-CoV-2. Given the virus’s incubation period of 3 to 14 days, exposures will usually be determined after the fact.
If there is not a known exposure that would trigger the presumption of work-relatedness, the employer must evaluate the employee’s work duties and environment to determine the likelihood that the employee was exposed during the course of their employment. (Id., subd. (b)(3).) 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.
- Whether the employee had work-related contact with anyone who exhibited signs and symptoms of COVID-19.
If a public entity determines that an employee’s COVID-19 infection is work-related, such infection must be recorded as discussed above.
An illness is not considered work-related if:
- At the time of the injury or illness, the employee was present in the work environment as a member of the general public rather than as an employee.
- The injury or illness involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment.
- The injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activity such as blood donation, physical examination, flu shot, exercise class, racquetball, or baseball.
- The injury or illness is solely the result of an employee eating, drinking, or preparing food or drink for personal consumption (whether bought on the employer’s premises or brought in). For example, if the employee is injured by choking on a sandwich while in the employer’s establishment, the case would not be considered work-related. Note: If the employee is made ill by ingesting food contaminated by workplace contaminants (such as lead) or gets food poisoning from food supplied by the employer, the case would be considered work-related.
- The injury or illness is solely the result of an employee doing personal tasks (unrelated to their employment) at the establishment outside of the employee’s assigned working hours.
- The injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.
- The injury or illness is caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work.
- The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or COVID-19 are considered work-related if the employee is infected at work).
- The illness is a mental illness. Mental illness will not be considered work-related unless the employee voluntarily provides the employer with an opinion from a physician or other licensed healthcare professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating that the employee has a mental illness that is work-related.
(Cal. Code Regs., tit. 8, § 14300.5(b)(2).)
Immediate Cal/OSHA Reporting Requirements in Case of Serious Illness, Injury, or Death
California employers must also report to Cal/OSHA any serious illness, serious injury, or death of an employee that occurred at work or in connection with work within eight hours of when the employer knew or should have known of the illness. (Cal. Code Regs., tit. 8, § 342(a).) This includes a COVID-19 illness if it meets the definition of “serious illness.”
A serious illness includes, among other things, any illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing. (Cal. Code Regs., tit. 8, § 330(h).)
This means that if a worker becomes ill while at work and is admitted as in-patient at a hospital — regardless of the duration of the hospitalization — the illness occurred in a place of employment, so the employer must report this illness to the nearest Cal/OSHA office. Likewise, if an employee is hospitalized following work-related infection, the illness is considered to have occurred “in connection with work” and must be reported. Reports must be made immediately, but not longer than eight hours after the employer knows or with diligent inquiry would have known of the serious illness.
Public entities can find the Cal/OSHA office servicing their area by looking up their zip code at: https://www.dir.ca.gov/dosh/report-accident-or-injury.html.
Reporting to Cal/OSHA of a serious illness, injury or death that occurred at work must be made regardless of whether the illness or injury is “work-related.”
Exclusion of COVID-19 positive cases from the workplace
Cal/OSHA regulations require employers to exclude from the workplace:
- All COVID-19 positive cases, and
- Any employees who had a close contact with a COVID-19 positive case, subject to certain exceptions for employees who are fully vaccinated or who have recently recovered from COVID-19. (Cal. Code Regs., tit. 8, § 3205(c)(9)(A)-(B).)
For a complete guide regarding employee exclusions following a COVID-19 diagnosis or close contact exposure, please see Cal/OSHA’s Employee Isolation and Quarantine.
OMLO will continue to monitor these developments carefully. This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.