Previously designated low-hazard industries reclassified as nonexempt
The Occupational Safety and Health Administration (OSHA) announced a final rule Sept. 11, 2014, revising the requirements for reporting work-related fatality, injury and illness information. The rule also updates the list of employers partially exempt from OSHA record-keeping requirements.
The current regulation requires employers to report all work-related fatalities and in-patient hospitalizations of three or more employees within eight hours of the event.
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.
The reporting regulations affect all employers covered by OSHA, even those who are partially exempt from maintaining injury and illness records.
The changes go into effect Jan. 1, 2015, for workplaces under federal OSHA jurisdiction. Employers located in states that operate their own safety and health programs should check with their state plan for the implementation date of the new requirements.
“This new data will enable the agency to identify the workplaces where workers are at the greatest risk and target our compliance assistance and enforcement resources accordingly,” said Assistant Secretary of Labor for Occupational Safety and Health David Michaels during a press conference.
Michaels added that the data obtained by OSHA will be posted online, stating that the agency “believes that public disclosure will incentivize employers to ensure a safe workplace for their employees.”
The public disclosure announcement surprised Marc Freedman, executive director of Labor Law Policy at the U.S. Chamber of Commerce, who remarked that this provision was not in the proposed rule. “In fact I haven’t been able to find a clear statement in the final regulation either,” he said. “According to the regulation, these reports will include employee names—will OSHA be posting that information? If not, how will they handle the 25,000 reports they expect to receive?”
Details of the Rule
Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA. In-patient hospitalizations, amputations or loss of an eye must be reported to OSHA only if they occur within 24 hours of the incident.
Employers do not have to report an event if it resulted from a motor vehicle accident on a public street or occurred on a commercial or public transportation system.
Additionally, employers do not have to report an in-patient hospitalization if it was 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.
During the rule’s notice-and-comment period in 2011, many employers objected to OSHA’s proposal to lower the reporting threshold on hospitalizations, asserting that an employee’s hospitalization does not always represent a serious injury or illness, and may occur due to non-work-related events.
“The fact that they went from a three or more employee threshold to any employee, makes the work-relatedness issue that triggers reporting much less clear,” said Freedman. “With three or more employees being hospitalized, there is virtually no question about whether their hospitalization is work related. When it’s only one employee, whether the hospitalization is work-related may not be clear, assuming no specific accident or incident has occurred.”
Calling the development “long overdue,” Michaels said that the new rule will establish better relationships between OSHA area offices and the employers in those districts. He also expressed hopes that the requirements will help the agency find problems earlier.
“Hospitalizations and amputations are sentinel events, indicating that serious hazards are likely to be present at a workplace and that an intervention is warranted to protect the other workers at the establishment,” he said. “Too often, after a fatality, when we inspect, we learn that other workers have already been injured at that establishment.”
Michaels said that upon receiving reports of serious injuries, “we will begin a conversation, and in some cases we won’t need anything else. 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.”
The uncertainty around this aspect of the regulation troubles Freedman. “Will these contacts between OSHA and employers be just consultative in nature, as Michaels seemed to suggest, or will there be an enforcement component to these calls and some sort of inspection leading to citations?” he asked. “There aren’t any clear details about how these calls would work, or which part of OSHA was going to make them,” he added.
Employers will at the very least be asked what caused the injury and what the employer intends to do to address the hazard and prevent future injuries, Michaels said. “That employer will then be on notice that OSHA knows about that severe injury, and it 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.”
Based on OSHA’s conversation with an employer, the agency may decide no further action is needed, recommend the employer enroll in OSHA’s free consultation program, or conduct an inspection, Michaels said.
“The new rule will dramatically increase the number of incidents that employers have to report directly to OSHA, and will also dramatically increase the number of incident inspections that OSHA conducts,” remarked Eric Conn, founding partner and chair of the OSHA Workplace Safety Group at the law firm Conn Maciel Carey PLLC, based in Washington, D.C. “Experience also tells us that OSHA does not leave incident inspections without citing something.”
There will soon be three options for reporting incidents:
- By telephone to the nearest OSHA Area 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.
“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,” advised Conn.
Nearly 200,000 Employers Must Start Keeping Injury Records
Certain covered employers are required to prepare and maintain records of serious occupational injuries and illnesses using the OSHA 300 Log. However, employers in certain low-hazard industries are partially exempt from routinely keeping OSHA injury and illness records. Starting on Jan. 1, 2015, however, an estimated 199,000 establishments that had previously been partially exempt will be nonexempt. These industries account for an estimated 173,000 injuries and illnesses per year, according to OSHA. In addition, 119,000 employers that were previously nonexempt will become partially exempt. These industries account for an estimated 76,000 injuries and illnesses per year.
The previous list of partially exempt industries was based on the older Standard Industrial Classification (SIC) system and injury and illness data from the Bureau of Labor Statistics (BLS) from 1996, 1997 and 1998. The updated list of partially exempt industries is based on the North American Industry Classification System (NAICS) and BLS injury and illness data from 2007, 2008 and 2009. “NAICS is the standard widely used by federal statistical agencies for the purpose of collecting, analyzing and publishing data on business establishments. SIC codes are rarely used anymore,” Michaels said. The transition to NAICS has been promised since the 2001 revision to OSHA’s recordkeeping standard.
The new rule maintains the record-keeping exemption for any employer with 10 or fewer employees regardless of industry classification.
The new list of exempt industries includes gasoline stations, clothing stores, newspaper publishers, colleges and universities, and full-service restaurants.
Industries newly required to keep records include automobile dealers, liquor stores, bakeries, performing arts companies, museums, historical sites, and emergency and other relief services.
Michaels said that OSHA is planning an extensive outreach effort with employers required to keep OSHA logs for the first time. “We will notify establishments in industries that are new to keeping OSHA logs, explaining their new obligations and where to find resources to help them,” he said. These resources include tutorials, information fact sheets and FAQs on OSHA’s new record-keeping webpage.
This final rule should not be confused with OSHA’s controversial proposal requiring employers to electronically submit injury-and-illness log data that would be posted on the agency’s public website. That proposed rulemaking continues to accept comments through Oct. 14, 2014.
Roy Maurer is an online editor/manager for SHRM.