The Occupational Safety and Health Administration (OSHA) has jurisdiction over safety and health issues in the railroad workplace under certain circumstances. Since 1978, the Federal Railroad Administration (FRA) has recognized that OSHA’s expertise in workplace safety applies to the railroad industry.
Two Part Inquiry
To determine whether OSHA has jurisdiction over railroad safety and health issues, courts will generally look to 29 U.S.C. § 653(b)(1), which provides that OSHA’s enforcement powers will be preempted if an agency other than OSHA has exercised its authority to prescribe and enforce regulations in a particular area affecting health and safety. Put more simply, the courts will ask two basic questions:
- Does the FRA have the statutory authority to “prescribe regulations and issue orders for every area of railroad safety”?
- Has the FRA exercised its statutory authority with respect to a particular area affecting health and safety?
With respect to COVID-19, the answer to the first question is “Yes” pursuant to 49 U.S.C. § 20103. As to the second question, the answer is ostensibly “No.” Recently, the FRA issued a Safety Advisory encouraging the railroad industry to follow the guidelines and best practices established by other various agencies, such as the CDC and OSHA. Such an advisory, however, does not carry the force of law pursuant to 48 C.F.R. § 5.25. Notably, the FRA has stated that it will exercise its enforcement discretion “and not require the reporting of any confirmed case of COVID-19 where there is no reasonably available, objective evidence that the confirmed case resulted from a work-related exposure.”
The lack of specific COVID-19 guidelines from the FRA suggests that OSHA has jurisdiction in this area, and employers in the railroad industry must comply with OSHA’s recordkeeping and reporting standards. Paradoxically, OSHA has adopted a similar position as the FRA, stating that it will exercise enforcement discretion because in many circumstances it will be difficult to determine whether employees were infected with the COVID-19 virus in the workplace.
COVID-19 is Not Considered a Common Cold or Seasonal Flu
Although common colds and influenza are not events that need to be recorded on OSHA Form 300 pursuant to 29 C.F.R. § 1904.5(b)(2), OSHA has made it clear that coronaviruses should not be considered a common cold or seasonal flu.
In fact, more than a decade ago, OSHA explicitly stated that the 2009 Novel H1N1 influenza “is not considered a common cold or seasonal flu. The work-relatedness exception for the common cold or flu at 28 CFR 1904.5(b)(2)(viii) does not apply[.]” OSHA Instruction, Directive Number: CPL-02-02-075 (November 20, 2009). Likewise, on April 10, 2020, OSHA instructed compliance safety and health officers that “COVID-19 is a respiratory illness and should be coded as such on the OSHA Form 300.” This is still the guidance today. OSHA Enforcement Guidance for Recording Cases of Coronovirus Disease 2019 (COVID-19) (May 19, 2020).
Thus, it is critical that employers understand when they must record COVID-19 cases on Form 300 and when they must report COVID-19 cases to OSHA. That being said, OSHA acknowledges that outside of the healthcare, emergency response organizations, and correctional facilities, making work-related determinations when and where employees were infected with COVID-19 can be difficult. Nevertheless, employers must still record such cases under certain circumstances.
Recording Criteria
OSHA’s Enforcement Guidance for Recording Cases of Coronovirus Disease 2019 (COVID-19) (May 19, 2020) provides in part:
Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if:
- The case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC);
- The case is work-related as defined by 29 CFR § 1904.5; and
- The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
Each of these elements must be satisfied. If one or more of these elements are missing, there is no requirement to record the event in Form 300.
A confirmed case of COVID-19 means that an employee has tested positive for SARS-COV-2, the virus that causes COVID-19. Work-related means that there is (1) objective evidence that a COVID-19 may be work-related and (2) the evidence is reasonably available to the employer. OSHA’s latest guidance (May 19, 2020) contains a number of considerations the employer should take into account. Finally, the general recording criteria lists several things, including death, one or more days from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed health care professional.
Are Employers Required to Report COVID-19 Events to OSHA?
OSHA’s May 19, 2020 guidance indicates that work-related COVID-19 illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye are reportable. This is consistent with 29 C.F.R. § 1904.39. Thus, unless OSHA explicitly states otherwise, confirmed, work-related COVID-19 infected employees who are formally admitted to the hospital for treatment or die as a result should be reported to OSHA.
A Quickly Evolving Area
Because scientists and healthcare workers are still learning about COVID-19, and because this is a quickly evolving area, it is important to check the OSHA and FRA websites for the latest regulations and guidelines.