On September 18, 2014, OSHA published in the Federal Register a 60-page Final Rule changing requirements for Injury and Illness Recordkeeping and Reporting under Part 1904, 29 C.F.R. §1904.0 et.seq. The new requirements take effect in federal OSHA states on January 1, 2015. The 21-state OSHA plan states are encouraged to implement the changes by January 1, 2015, but are required to implement them no later than January 1, 2016.
THE FINAL RULE
The final rule has two parts: (1) it changes and updates the list of industries that are exempt from keeping records of injuries and illnesses, and (2) it modifies and greatly expands the requirements regarding reporting of “serious” work-related incidents to OSHA (affirmative notification to the agency by the employer). The new requirements are distinct from the recording requirements under Part 1904, which remain unchanged and are triggered by lost-time and restricted duty incidents, as well as injuries and illnesses that require medical treatment or result in loss of consciousness. The OSHA recording requirements—the OSHA 300/301 logs—generally are not reviewed by OSHA except during inspections or if an employer is asked to submit them by the Bureau of Labor Statistics (BLS).
With regard to the first part, the current regulation (in Appendix A to Subpart B of Part 1904) includes a list of 56 industries, identified by a 2 or 3 digit SIC number, that are exempt from the recordkeeping requirements. OSHA refers to these as “partially exempt” because, despite being listed in Appendix A, they may be required to keep records if so notified by BLS, for its annual survey, or by OSHA, as part of the OSHA Data Initiative.
The old list was created in the 2001 changes to Part 1904 and was derived from injury and illness data from 1996 to 1998. In general, the industries listed are those with Lost Workday Injury and Illness rates that were 75 percent or less of the average LWDII rate for all of private industry during those years. The new rule retains the “75 percent of private industry average” methodology but uses NAICS industry classifications (not SIC codes), identifies industries according to this 4-digit classification, and uses the DART (days away, restricted work, job transfers) rate that has been commonly used since the 2001 recordkeeping changes. The new list of exempt industries is based on 2007 to 2009 data.
Because overall injury and illness rates in the U.S. have declined, the threshold DART rate to be exempt under the new rule is 1.5, down from 2.325 that was used for the current list. OSHA estimates that 199,000 establishments currently exempt will be covered by the new rule, and 119,000 establishments that were previously covered will now be exempt. Thus 80,000 fewer establishments will be exempt from recordkeeping under the new rule. The separate exemption in 29 C.F.R. § 1904.1 for employers who employ fewer than 10 employees throughout the year is not changed by the new rule, which means the smallest of contractors will likely be unaffected by this part of the rule.
The biggest change comes with the affirmative reporting requirement. Under the old rule, in federal OSHA states, only fatalities and catastrophic incidents resulting in the hospitalization of three or more individuals was reportable, within 8 hours of occurrence (some state plan OSHA states already had more stringent requirements). The employer must report such incidents by either contacting the OSHA area office or calling the toll-free 800 number OSHA maintains for this purpose: 800.321.6742.
The new rule is a major expansion of OSHA reporting requirements, and the agency predicts it could result in 25,000 or more new reports per year. Reporting of work-related fatalities has not changed; they must be reported within 8 hours. However, OSHA now requires all work-related incidents resulting in hospitalization of a single worker to be reported within 24 hours of the event. Hospitalization is defined in the rule as “a formal admission to the in-patient service of a hospital or clinic for care or treatment.” Therefore, emergency room visits are not covered, nor are admissions that are purely for observation or diagnostic testing.
The final rule also requires reporting within 24 hours of any “amputation” or enucleation (loss of eye). “Amputation” is defined in the rule as a traumatic loss of a limb or other external body part. Amputations include a part, such as a limb or appendage with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached. The new rule also mandates that fatalities be reported to OSHA if they occur within 30 days of the work-related incident.
Hospitalizations, amputations, or loss of an eye must be reported if it occurs within 24 hours of the incident. However, the fatality, hospitalization, amputation, or loss of an eye must be recorded if work-related, even if it does not have to be reported outside of these time frames.
OSHA estimates that it will receive “30 times” as many reports under the new rule as it has received under the current reporting requirements, but it has not definitively stated whether each report will result in a site inspection by OSHA. While it expects that it will respond to all reports, it may not have the personnel to launch an investigation each time, so employers may be contacted by telephone or fax initially, and OSHA may opt to provide compliance assistance materials in lieu of enforcement.
One addition of concern to some in the business community is that OSHA announced during a press conference its intention to post reports of injuries or fatalities on its website, which is consistent with other “public shaming” initiatives (e.g., SVEP program press releases and the proposed rule to require public filing and posting of all injuries and illnesses that are “recordable”). Another issue is determining the “work-relatedness” of an injury or illness within such as short period of time—before the company’s root cause investigation is complete. While recording/reporting for OSHA compliance is not linked directly to any finding of causation for workers’ compensation insurance purposes, it is still possible that the OSHA reports can be used against the employer for this purpose in litigation. It is expected that OSHA will issue some compliance guidance prior to final implementation of the rule in January 2015. ■
About The Author Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, October 2014
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