On September 11, 2014, the Occupational Safety and Health Administration (OSHA) announced a final rule that significantly changes an employer’s duties to report workplace injuries to the agency.
The current rule, codified at 29 C.F.R. §1904.39, only requires employers to report to OSHA workplace-related fatalities and in-patient hospitalizations of three-or-more employees. Employers have an eight-hour deadline from the time of the incident to make the report to the nearest OSHA area office or to its toll-free hotline.
The revised rule, which goes into effect on January 1, 2015, significantly alters an employer’s reporting requirements:
- In-patient hospitalization of one-or-more employees as a result of a work-related incident must be reported to OSHA within 24 hours. (The current rule requires reporting hospitalization of three-or-more employees within 8 hours.)
- Amputations and the loss of an eye as a result of a work-related incident must now be reported to OSHA within 24 hours. (This is a new provision.)
- Motor vehicle accidents occurring in construction work zones on public streets or highways resulting in a fatality, in-patient hospitalization, amputation, or eye loss must be reported to OSHA. (This is a new provision.)
- Reporting can be made either to the nearest OSHA Area Office, OSHA’s toll-free number, or on OSHA’s web site. (The current rule does not have provisions for online reporting.)
- If the in-patient hospitalization, amputation, or eye loss occurs more than 24 hours beyond the work-related incident, it does not have to be reported to OSHA, but still must be recorded on OSHA injury and illness logs. (This is a new provision.)
- If an employer doesn’t learn of an in-patient hospitalization, amputation or eye loss “at the time it takes place,” the employer must report it to OSHA within 24 hours of when the in-patient hospitalization, amputation, or eye loss is reported to the employer or any agent of the employer. (This is a new provision.)
- If an employer “does not learn right away” that a reportable incident was the result of a work-related incident, as soon as employer or any agent of the employer learns the reportable incident—8 hours from the time of learning for fatalities, 24 hours for in-patient hospitalization, amputation, or eye loss—the employer must make the report to OSHA. (This is a new provision.)
The Eight-Hour Workplace Fatality Reporting Rule
The only provision under the current rule that is not changing is an employer’s obligation to report workplace fatalities to OSHA within eight hours. OSHA is, however, amending the rule to take into account those situations in which the employer does not immediately learn of the fatality.
In-Patient Hospitalizations of One-or-More Employees
During the notice-and-comment period in 2011, many employers objected to OSHA’s proposal to lower the reporting threshold on hospitalizations from three-or-more employees to one-or-more employees. Many noted that an employee’s hospitalization does not always represent a serious injury or illness, and many occur due to non-work-related events. Others pointed to the rise of “defensive medicine”—the practice of physicians and health care professionals of ordering often-unnecessary tests, procedures, or visits primarily to reduce exposure to malpractice liability. OSHA acknowledged this concern to some extent by including provisions to clarify when the reporting clock starts to run. Several public commenters objected to reporting amputations, noting that OSHA’s proposed rule failed to precisely define “amputation” (If an employee slices off the tip of a finger, but does not suffer bone loss, does the incident constitute an amputation?) Many commenters also complained that OSHA ignored small businesses and failed to convene a Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 panel.
“In-Patient Hospitalization” and “Amputation” Defined
In response to some of the criticisms of the proposed rule, OSHA’s final rule includes definitions of two key terms and phrases:
- “In-patient hospitalization”: OSHA defines as a “formal admission to the in-patient service of a hospital or clinic for care or treatment.” The definition expressly excludes “observation or diagnostic testing.”
- “Amputation”: OSHA defines as a “traumatic loss of a limb or other external body part.” Amputations include “a part, such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially); fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; [and] amputations of body parts that have since been reattached. Amputations do not include avulsions, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth.”
In response to near-universal support, the agency will permit employers to report these incidents via OSHA’s web site. The online report will include mandatory fields for required information. If the report does not include the required information in the mandatory fields, the reporting application will not accept the report. The agency does not say, however, whether the online report will provide the employer with a verification number, email, time stamp, or any other means to allow the employer to keep a record of the report’s submission.
State Plan States
OSHA expects State Plan states, those states with their own state-run occupational safety and health agencies, to adopt these revisions and fully implement them within six months, with posting or submission of documentation within 60 days of adoption. This won’t be too much of a problem for a handful of states. California, Washington, Oregon, Alaska, Utah, and Kentucky already require reporting of single in-patient hospitalizations. California and Kentucky also already require the reporting of work-related amputations.
North American Industry Classification System
The rule also formally updates 29 C.F.R. §1904.2 and codifies OSHA’s switch from the Standard Industrial Classification (SIC) system to the more modern and detailed North American Industry Classification System (NAICS). NAICS was first adopted by the federal government in 1997, and OSHA has informally used NAICS to classify inspections for years. The new rule formally adopts NAICS and makes the SIC system obsolete, at least as it pertains to OSHA.
The rule also updated Appendix A to Part 1904, Subpart B, which is OSHA’s list of partially-exempt industries. Industries on Appendix A are not required to keep OSHA 300, 300A, or 301 recordkeeping logs, unless they are asked in writing to do so by OSHA, the Bureau of Labor Statistics (BLS), or any state-agency-equivalent of these federal agencies. The update requires certain industries to now keep OSHA recordkeeping logs. The affected industries include new and used car dealers; hardware stores; residential and non-residential building lessors and property managers; marketing research firms; facilities support services; blood and organ banks; convention and trade show organizers; beer, wine, and liquor stores; services for the elderly and persons with disabilities; food service contractors; caterers; theater and performing arts companies; and bowling alleys, among others.
On the other hand, the rule now partially exempts other industries, such as pension funds; labor unions; collection agencies;; newspaper, periodical, and book publishers; television and radio stations; wireless telecommunication carriers (except satellite carriers); and motorcycle, ATV, personal watercraft, and boat dealers, among others. These industries, OSHA explains, had low injury and illness rates based on 2007-2009 injury/illness data. One industry that qualifies for the partial exemption but won’t be receiving it is employment services (NAICS 5613), which includes employment placement agencies and temporary help services. In spite of their low injury rates, OSHA expressed concern that temporary employees’ “actual place of work may be in an establishment that is part of a different, possibly higher-hazard industry,” and therefore took away the partial exemption that the industry otherwise deserved. All partially exempt industries, however, still must report any employee’s fatality, in-patient hospitalization, amputation, or loss of an eye.
The purpose of the new reporting requirements is obvious: OSHA intends to increase inspections of employee hospitalizations, amputations, and eye loss. OSHA routinely investigates these matters when it discovers them, either through employee or third-party reports to the agency or news reports of accidents. In the final rule, OSHA claims that “it does not intend to inspect” every employer reporting one of these events. But the agency’s aggressive enforcement history belies this meek denial. OSHA rarely fails to investigate a fatality or catastrophe (hospitalization of three-or-more employees) reported under the current rule. To the contrary, the U.S. Department of Labor’s own regulations mandate that OSHA must investigate “each accident which results in a fatality or the hospitalization of three or more employees.”
Any employer required to submit a report of an accident to OSHA should expect an OSHA inspection or at least some contact from OSHA. Even for instances that may not be work-related (such as if an employee suffers a heart attack at work or develops food poisoning due to something he or she ate at lunch), employers can anticipate that OSHA will check the veracity of the employer’s report, which may entail the now-standard agency request for the employer’s OSHA 300 and 300A logs for the past three to five years. The new rule will no doubt keep OSHA busy. Under the current rule, OSHA receives approximately 750 to 1,100 fatality and catastrophe reports each year. The new rule will increase this number to anywhere from 150,000 to 275,000 reports per year. This, of course, provides the agency a perfect opportunity to request from Congress a significant increase in the agency’s enforcement budget to thoroughly investigate all such reports.