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.^[1]

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 ofone 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.

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.^[2] 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”).^[3] 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.^[4]

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.

Recommendations

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.

_{^{[1]. 79 Fed. Reg. 56,130 (Sept. 18, 2014), available here.}}  

_{^[2]. Improve Tracking of Workplace Injuries and Illnesses, 78 Fed. Reg. 67,254 (proposed Nov. 8, 2013), available here.} 

_{^[3]. Improve Tracking of Workplace Injuries and Illnesses, 79 Fed. Reg. 47,605 (proposed Aug. 14, 2014), available here.} 

_{^[4]. For more information on the Fairfax Memo, see our April 20, 2012 LawFlash, “OSHA Strengthens DOL's Whistleblower Protection Program ,” available here.}