Prior to January 1, 2015, employers should take steps to ensure compliance with a significant new OSHA rule that requires employers to notify OSHA within 24 hours of the in-patient hospitalization of more than one employee or an employee’s amputation or loss of an eye.
The Occupational Safety and Health Administration (OSHA) has revised its Occupational Injury and Illness Recording and Reporting Requirements, codified at 29 C.F.R. § 1904.2 and 29 C.F.R. § 1904.39, effective January 1, 2015. The revised rule was published on September 18.
Most significantly, the revised rule contains a new reporting requirement, which mandates that employers report to OSHA within 24 hours of any work-related incident that results in (a) the in-patient hospitalization of one or more employees, (b) an employee’s amputation, or (c) an employee’s loss of an eye. Previously, employers were only required to report to OSHA within eight hours of any work-related incident that resulted in the hospitalization of three or more employees. Reporting an amputation or loss of an eye was not required. The requirement to report a work-related fatality within eight hours remains unchanged. OSHA estimates that the new reporting requirement could lead to 170,000 additional reportable incidents per year, any of which could be used as the basis for initiating an inspection by OSHA.
A summary of the current and new reporting requirements is below.
Click here to view table.
Additionally, as explained further below, OSHA has modified the categories of employers who are partially exempt from the requirement to keep annual worksite-specific injury and illness records.
Definitions of New Terms
The revised rule contains the following two new definitions:
- “In-patient hospitalization” is defined as a “formal admission to the in-patient service of a hospital or clinic for treatment” that involves more than only observation or diagnostic testing.
- “Amputation” is defined as a “traumatic loss of a limb or other external body 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,” but the definition does not include “avulsions, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth.”
Method of Reporting and Potential Public Disclosure
Previously, employers could provide notice to OSHA of a reportable incident by contacting the OSHA Area Office nearest to the site of the incident during business hours or by calling OSHA’s toll-free central telephone number, 1.800.321.OSHA (1.800.321.6742). Under the revised rule, employers may still use these same methods; however, an employer will also be permitted to report an incident through a reporting application located on OSHA’s website. (Note: As of the date of this publication, the reporting application is not yet up and running.)
Additionally, during a press call on the revised rule on September 11, Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels stated that the new reports that employers will be required to make under the rule will be available to the general public on OSHA’s website (currently, OSHA only publishes reports of fatalities). The publication of these reports was not addressed in the revised rule, and it is unclear whether OSHA has statutory authority to do so. However, publishing the reports would be in line with a growing trend of OSHA’s using publicity more aggressively to, in the words of Dr. Michaels, “nudge” employers to “prevent injuries so they are not seen as unsafe places to work.”
Indeed, a proposed rule published by OSHA on November 8, 2013 would require certain employers to electronically submit establishment-specific injury and illness records (i.e., all recordable injuries) directly to OSHA, and it also provided that OSHA planned to post that data on its website. OSHA recently published a supplement to that proposed rule on August 14, 2014, which indicated its intention to give increased scrutiny to employers’ policies on reporting injuries/illnesses (focusing on “unreasonable requirements for reporting injuries and illnesses and retaliating against employees who report injuries and illnesses”). OSHA has justified this supplement by relying on stakeholders’ concern that the proposed electronic reporting of workplace injury/illness data would “motivate” employers to under-report such data. This is all part of OSHA’s broad focus on employers’ recordkeeping obligations over the last few years, including enforcement initiatives and the Policy Memorandum (the Fairfax Memo) released by OSHA on March 12, 2012, which focused on employee discipline policies and practices relating to reporting workplace injuries/illnesses as well as safety incentive programs.
Changes in the Industries Partially Exempt from Recordkeeping
Under the old rule, employers in certain industries identified as “low hazard retail, service, finance, insurance, or real estate” industries based on their Standard Industrial Classification (SIC) code were not required to keep yearly OSHA injury and illness records (OSHA forms 300, 300A, and 301), unless specifically asked to do so. The new rule relies on an employer’s North American Industry Classification System (NAICS) code rather than the SIC code. Under the new rule, OSHA estimates that 220,000 establishments employing 5.5 million employees will be newly required to keep records and 160,000 establishments employing 4.1 million employees will now be exempt. Specifically, employers in the following industries will now be required to keep injury and illness records effective January 1, 2015:
NAICS Code Industry Description
3118 Bakeries and tortilla manufacturing
4411 Automobile dealers
4413 Automotive parts, accessories, and tire stores
4441 Building material and supplies dealers
4452 Specialty food stores
4453 Beer, wine, and liquor stores
4539 Other miscellaneous store retailers
4543 Direct selling establishments
5311 Lessors of real estate
5313 Activities related to real estate
5322 Consumer goods rental
5324 Commercial and industrial machinery and equipment
rental and leasing
5419 Other professional, scientific, and technical services
5612 Facilities support services
5617 Services to buildings and dwellings
5619 Other support services
6219 Other ambulatory health care services
6241 Individual and family services
6242 Community food and housing, and emergency and
other relief services
7111 Performing arts companies
7113 Promoters of performing arts, sports, and similar events
7121 Museums, historical sites, and similar institutions
7139 Other amusement and recreation industries
7223 Special food services
8129 Other personal services
Who Is Covered?
The changes to the reporting and recordkeeping requirements apply to all employers covered by the federal Occupational Safety and Health Act (OSH Act). Employers working in a jurisdiction with an OSHA-Approved State Plan should consult the applicable State Plan regulations. OSHA has instructed State Plans to adopt a rule that is “identical to or at least as effective” as the revised rule.
To ensure compliance with the new reporting and recordkeeping rules, employers covered by the federal OSH Act should do the following:
- Review their safety handbooks and policies to ensure compliance with the new reporting requirements
- Review their NAICS code (see here for assistance in determining NAICS codes) to determine whether they will or will not be required to keep injury and illness records and update recordkeeping policies as appropriate
- Train employees on the new reporting and recordkeeping requirements
Failure to comply with these new requirements could subject employers to citation under the OSH Act.