United States: OSHA Expansion: New Rule Adds More Injuries, Industries To Recordkeeping Requirements

Q: John runs a small company that had two workers injured recently. Following a fire at the factory, Teresa needed to be hospitalized overnight for smoke inhalation. A fellow employee, Nick, suffered more serious burns that resulted in the amputation of a finger.  He was in the hospital for several days. John knows that there are requirements for reporting work-related injuries, but isn't sure of the specifics. Is he required to report any of the above injuries?

A: The answer to John's question today is "no." However, come January 1st, 2015, that answer changes, and John would only have 24 hours to fulfill all of his reporting obligations to the federal government.

In states such as New Hampshire that do not have federally-approved "state plans" for workplace safety and health, employers are subject to the regulations of the Department of Labor's Occupational Safety and Health Administration (OSHA). This includes a recordkeeping rule, requiring that certain employers maintain records and, in some cases, report serious occupational injuries and illnesses. Under the current rule, employers are only required to report the in-patient hospitalization of three or more workers, or a work-related fatality. That incidents of this magnitude should be reported is likely obvious to many employers. However, it may come as a surprise that the work-related incidents need to be that severe before the reporting requirements kick in. While other injuries must be recorded in the mandatory register known as the OSHA 300 Log of work-related injuries and illnesses, employers are not obligated to report to OSHA when fewer than three employees are involved and no deaths occur. Or, not yet, anyway.

On September 11, 2014, OSHA announced changes to the reporting requirements for severe injuries, expanding both the type of injury that must be reported, and the employers who are required to report it.  Starting on January 1, 2015, employers will be required to report any of the following to OSHA:

  • all work-related fatalities;
  • all work-related inpatient hospitalizations of one or more employees;
  • all work-related amputations; and
  • all work-related losses of an eye.

Reporting of these injuries must be done quickly. Employers are required to verbally report any work-related fatalities within 8 hours of finding out about them.  For an inpatient hospitalization, amputation, or eye loss, employers must report the incident within 24 hours of learning about it. While an employer only needs to report an inpatient hospitalization, amputation, or loss of an eye that occurs within 24 hours of the work-related incident, any death of a worker must be reported if it occurs within 30 days of the incident.

These reporting deadlines do not provide an unprepared employer with much time to figure out its obligations under the recordkeeping rules.  In John's case, he would only have 24 hours to report the injuries of both Nick (amputation) and Teresa (inpatient hospitalization) to OSHA. Assuming John knew about these obligations, how would he go about reporting this incident to OSHA?

Employers are provided with three options for reporting an event:

  • Call the closest OSHA Area Office during normal business hours.
  • Call the 24-hour OSHA hotline at 1-800-321-OSHA (6742).
  • Report the event electronically www.osha.gov (this option is still in development, and may not yet be available).

When reporting to OSHA, the employer, at the very least, needs to know the bare facts of the incident. This includes the location, time, and type of reportable event, as well as the number and names of employees who suffered an injury.

With a policy in place, John should be able to comply with reporting requirements when OSHA's updated recordkeeping rule goes into effect in 2015. Aside from reporting, will there be any other changes to John's OSHA obligations in the new year?  The answer depends on the size and industry of John's business.

While all employers are required to report serious work-related injuries, certain employers are excused from recording less-severe work-related injuries and illnesses. Under OSHA's recordkeeping regulations, many employers must prepare and maintain records of occupational injuries and illnesses using the OSHA 300 Log. The new rule updates the type of employers that are exempt from this routine recordkeeping.

There are two classes of employers that are currently exempt from OSHA's recordkeeping requirements. First, an employer with ten or fewer employees at all times during the previous year is exempt from routinely keeping injury and illness records. The updated rule maintains this exemption. Second, employers in certain low-hazard industries are also exempt from recordkeeping requirements (e.g. finance, insurance, and real estate). Starting January 1, 2015, there will be a new list of industries exempt from keeping OSHA records. However, with this new list comes the addition of 25 new industries which had previously been exempt but will now be required to maintain records. These include some industries that may not seem particularly dangerous (e.g. museums, community housing, and the ever-perilous tortilla manufacturing).

John will need to determine whether his business falls into one of the two exemption classes. This can be done by logging onto to www.osha.gov and following the detailed instructions, or by contacting the local OSHA office. Even if John's business was previously exempt as low-hazard, the OSHA expansion has added so many new industries that he will want to confirm the exemption still applies. And, if it doesn't, there is work to be done. January 1st is right around the corner, and meeting OSHA's injury and illness recordkeeping requirements means new forms, policies, and procedures that take time to implement.

OSHA believes workplace injuries like those described above are preventable, and seeks to hold employers accountable for preventing them.  It took prompt reporting and incident recording quite seriously prior to the new rule; this expansion likely indicates that the scrutiny by OSHA will only increase. Employers should make sure they know what is required of them before January 1, 2015, and have policies in place that reflect the new recordkeeping regulations.

Kenton Villano is an Associate in the Litigation Practice Group.

Published in New Hampshire Business Review

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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