New Mexico Implements Employer Reporting Rule for COVID-19 Cases

In addition to other measures New Mexico is taking to try to control the coronavirus pandemic, effective Aug. 5, the Occupational Health and Safety Bureau of the New Mexico Environment Department (NM OSHA) implemented an emergency amendment to its injury and illness reporting regulation, 11 NMAC §5.1.16.

The new provision, which will remain in effect for 120 days unless it is made permanent, requires employers in New Mexico to report to NM OSHA any case in which an employee tests positive for COVID-19 within four hours of the employer learning about it.  Notably, a department spokesperson confirmed that the department interprets the reporting requirement to cover any employee who reports a positive test, including employees whose illness is not work-related. This four-hour reporting requirement is so far the most stringent reporting rule an OSHA agency has enacted.

General Injury and Illness Reporting Requirements

In 2014, federal OSHA updated its rule (29 CFR §1904.39(a)) that requires employers to report certain injuries and illnesses to OSHA. Specifically, any work-related fatalities must be reported within eight hours, and any work-related inpatient hospitalization, amputation, or loss of an eye must be reported within 24 hours. States that operate their own occupational safety and health plans, including New Mexico, were required to adopt measures at least as protective as this rule.  Accordingly, in 2015, New Mexico updated its reporting rule to include these same obligations.

[Looking for state-specific information? See State & Local Updates]

On May 19, federal OSHA issued updated guidance addressing when employers have to record an employee case of COVID-19 on their OSHA 300 log. As with reportable injuries and illnesses, an employee's COVID-19 infection must be "work related" to need to be recorded, and that determination may not be obvious in most workplace settings. OSHA has not provided specific guidance about when employers must report COVID-19 cases. 

New Mexico's emergency rule—which requires reporting of COVID-19 cases that are not necessarily work-related and within four hours—therefore exceeds these requirements.

The Bottom Line

Based on this new rule, employers in New Mexico need to implement processes to ensure reports of employees testing positive for COVID-19 are made timely. This includes making sure supervisors at all locations know to contact a central person in the company who can make the report whenever they hear that an employee tests positive for COVID-19.

Steve Biddle is an attorney with Littler Mendelson in Phoenix. Charlotte Lamont is an attorney with Littler Mendelson in Albuquerque, N.M.. © 2020 Littler Mendelson. All rights reserved. Reposted with permission.