A final rule released September 11, 2014 by the Occupational Safety and Health Administration (OSHA), revises the requirements for reporting work-related fatality, injury and illness information and updates the list of employers partially exempt from OSHA record-keeping requirements. For workplaces under federal OSHA jurisdiction, it goes into effect January 1, 2015. Employers located in states that operate their own safety and health programs should check with the state plan for the implementation date of the new requirements.
Changes in reporting requirements
Current regulations require an employer to report all work-related fatalities and in-patient hospitalizations of three or more employees within eight hours. Reporting single hospitalizations, amputations or loss of an eye is not currently required. The new rule retains the requirement to report all fatalities to OSHA within eight hours but amends the regulation to require employers to report all work-related in-patient hospitalizations, as well as amputations and losses of an eye, to OSHA within 24 hours. An OSHA blog has a helpful chart illustrating the requirements.
The final rule indicates only fatalities occurring within 30 days of the work-related incident must be reported. In-patient hospitalizations, amputations or loss of an eye must be reported only if they occur within 24 hours of the incident. Additionally, employers do not have to report an in-patient hospitalization if it is for diagnostic testing or observation only. Employers do have to report hospitalizations due to a heart attack, if the heart attack resulted from a work-related incident.
The reporting requirements affect all employers covered by OSHA, even those who are exempt from maintaining injury and illness records.
According to some labor law professionals, employers should be concerned that this change can ramp up the number of inspections as well as result in online postings that may unfairly represent them as an unsafe employer. Changing from a three or more threshold to a single employee makes the work-relatedness less clear.
In making the announcement, Assistant Secretary of Labor for Occupational Safety and Health David Michaels stated:
“We expect to be notified of many hospitalizations and amputations. We are not going to send an inspector to respond to every one of these. But, we will engage with the employers whose workers have been hurt. Right now, we are developing a process to determine which incidents to inspect and which to handle using other types of investigations and interventions.
“This rule is an example of the application of behavioral economics to worker safety. When an employer notifies us of a severe injury among its workers, we will ask what caused the injury and what the employer intends to do to address the hazard and prevent future injuries. That employer will then be on notice that OSHA knows about that severe injury, and will have made the commitment to address the hazard. We believe that as a result of this interaction, that employer will be more likely to take the steps necessary to better protect the lives and limbs of their employees.”
Michaels added that the data obtained by OSHA would be posted online, stating:
“These new reports of severe injuries and illnesses will all be public, on the OSHA website, providing employers, workers, researchers and the public more information about workplace safety and health, and steps that need to be taken to prevent future injuries. Since no employer wants their workplace to be known as an unsafe place, we believe that the possibility of public reporting of serious injuries will encourage – or, in the behavioral economics term “nudge” – employers to take steps to prevent injuries so they are not seen as unsafe places to work. After all, if you had a choice of applying for a job at a workplace where a worker had recently lost a hand, versus one where no amputations had occurred – which would you choose?”
Exactly how this will be done is unclear and is of concern to many labor law professionals.
Reporting options: caution urged
There will be three options for reporting incidents:
- By telephone to the nearest OSHA Office during normal business hours.
- By telephone to the 24-hour OSHA hotline (1-800-321-OSHA or 1-800-321-6742).
- Electronically, via a web portal which should be available soon.
In a Society for Human Resource Management article, “OSHA announces new injury reporting rules,” Eric Conn, founding partner and chair of the OSHA Workplace Safety Group at the law firm Conn Maciel Carey PLLC urges caution about using the web portal:
“I would caution employers against this new tool because it will require employers to memorialize an explanation about an incident that just occurred a few short hours earlier, and about which they cannot really know enough to commit to a description in writing that may later be used against them in enforcement proceedings.”
More employers required to report: changes in exempt status
The final rule also updates the list of industries that are partially exempt from injury and illness record-keeping requirements. The previous list of exempt industries was based on the old Standard Industrial Classification system and the new rule uses the North American Industry Classification System to classify establishments by industry.
Starting on Jan. 1, 2015, an estimated 199,000 establishments that previously had been partially exempt will be nonexempt. In addition, 119,000 employers that were previously nonexempt will become partially exempt.
The new rule maintains the record-keeping exemption for any employer with 10 or fewer employees regardless of industry classification.
Among the new list of exempt industries are gasoline stations, clothing stores, newspaper and book publishers, certain pipeline transportation, colleges and universities, full-service restaurants, and many administrative functions.
Industries that were previously exempt but will be required to keep records include automobile dealers, liquor stores, bakeries, specialty food stores, lessors of real estate, performing arts companies, museums, historical sites, individual and family services, among others.
OSHA has published a fact sheet on the industries required to keep records and those that are exempt.
For more information visit the OSHA Website about the new requirements.
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