On Jan. 1, 2015, the U.S. Department of Labor’s Occupational Safety and Health Administration’s (OSHA) final rule takes effect requiring employers to notify OSHA within eight hours, when an employee is killed on the job; and within 24 hours, when an employee suffers a work-related hospitalization, amputation or loss of an eye. The current notification rule, codified in 29 C.F.R. §1904.39, does not require employers to report to OSHA single hospitalizations, only if three or more workers are hospitalized, nor does it require employers to report amputations or loss of an eye. The revised rule also updates the list of those employers partially exempt from OSHA’s recordkeeping requirements, as explained below. While the revised rule applies only to workplaces under the jurisdiction of federal OSHA, state-plan administrators that have been charged with setting their own implementation dates are encouraged by OSHA to implement the revised rule by Jan. 1, 2015. Currently 21 states and Puerto Rico have their own state plans covering private sector workers, and a handful of states already require the reporting of single in-patient hospitalizations and the reporting of work-related amputations.
In 2013 more than 4,400 employees were killed on the job, according to the Bureau of Labor Statistics’ (BLS) 2013 National Census of Fatal Occupational Injuries. David Michaels, assistant secretary of labor for OSHA, stated that the revised rule:
As for the recordkeeping, the revised rule formally updates 29 C.F.R. §1904.2, and has exempted additional employers from routinely keeping such records due to the recent updated injury and illness data from BLS, based upon the more modern North American Industry Classification System (NAICS, as opposed to the current list of exempt industries based on the older Standard Industrial Classification (SIC) System – using information last reported in 1998). Specifically, employers in certain low-hazard industries are partially exempt from routinely keeping OSHA injury and illness records known as an OSHA 300 Log. However, other employers – that were previously exempt from keeping injury and illness records – will now be required to keep those records under the new rule. According to OSHA, and based on the results from BLS under the NAICS, approximately 199,000 work establishments that had previously been partially exempt (accounting for an estimated 173,000 injuries and illnesses per year) now will be nonexempt and must maintain injury and illness records. Conversely, 119,000 employers that were previously nonexempt (accounting for an estimated 76,000 injuries and illnesses per year) now will be partially exempt. This means certain industries, including gasoline stations, clothing stores, newspaper publishers, colleges and universities, and full-service restaurants, are now exempt and therefore not required to keep injury and illness records. Whereas, automobile dealers, liquor stores, bakeries, performing arts companies, museums, historical sites, and emergency and other relief services will now be required to keep injury and illness records. Remaining unchanged is the recordkeeping exemption for employers with 10 employees or fewer, no matter the industry.
As for the timing of the reporting when the effect is not concomitant with a workplace-incident, the new rule requires that employers report only those fatalities occurring within 30 days of the work-related incident, and only an inpatient hospitalization, amputation or loss of an eye, when occurring within 24 hours of the work-related incident. The incident must still be “work-related” – a condition precedent to triggering an employer’s reporting obligation. Therefore, incidents resulting from a non-work-related motor vehicle accident or occurring on a commercial or public transportation system that is not work-related, need not be reported to OSHA. Employers are also not required to report any in-patient hospitalization, if the admission is strictly for diagnostic testing or observation. The new rule provides three reporting options for employers:
The revised reporting rule further underscores OSHA’s strategy and focus for requiring employers to be vigilant in monitoring their workplaces and providing a safe environment for their employees. The information gathered as a result of the widened scope of the required reporting will be studied and used by OSHA to target certain workplace hazards in specific industries responsible for repeat deaths, amputations or loss of eyes. Employers should expect that the increase in mandatory reportable incidents will result in more inspections and investigations by OSHA. Similarly, the revisions to the recordkeeping requirements rely on more relevant and recent statistical information reflecting a closer reality as to workplaces across the United States that are consistent with OSHA’s stated efforts to modernize and make better use of its resources.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.
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