By Nickole C. Winnett In a press release issued September 11, 2014, OSHA announced the final rule for Occupational Injury and Illness Recording and Reporting Requirements. For Federal Plan States, the regulation will go into effect on January 1, 2015; State Plan States will announce their dates independently but are encouraged to meet the same deadline. This regulation brings some major new changes for employers. Dr. David Michaels, assistant secretary of labor for occupational safety and health, cited the most recent Bureau of Labor Statistics (BLS) report stating that 4,405 workers were killed on the job in 2013 to emphasize the importance of this new rule. Establishments in certain low-hazard industries are partially exempt from routinely keeping OSHA injury and illness records. Under the new rule, there will be a shift in the number of industries which are partially exempt from keeping these records. Previous regulations used the Standard Industrial Classification (SIC) system to categorize industries. The new rule now relies on the North American Industry Classification Systems (NAICS) along with injury and illness data from BLS from 2007 through 2009 to categorize the industry as low-hazard and exempt employers from OSHA recordkeeping requirements. As a result of this update, employers in several new industries are now required to keep OSHA injury and illness records. A list of these new industries can be found here. The new rule maintains the exemption for any employer with 10 or fewer employees from the requirement to routinely keep records of worker injuries and illnesses. The rule expands the list of severe injuries, which all OSHA-covered industries must report to OSHA regardless of size or partial exemption status. The current rule stipulates that when there is a fatality or three or more hospitalizations, the employer must inform OSHA within eight hours of the occurrence. Under the new rule, a fatality (within 30 days of the work-related incident) must still be reported within eight hours of the death. However, employers will now have a 24 hour window in which to report to OSHA all work-related inpatient hospitalizations that require care and treatment of a single employee, all amputations, and all losses of an eye which occur within 24 hours of the incident. The available methods of reporting by the employer have also been expanded. In addition to calling OSHA's confidential number (1-800-321-OSHA) or calling the local OSHA Area Office, employers will be able to go to the web portal, which OSHA is developing, and make a report electronically. OSHA has stated that not all reported incidents will lead to an inspection. OSHA noted, however, that hospitalization and partial body loss are significant events that indicate serious hazards are likely to be present at a workplace and that an intervention is warranted to protect the other workers at the establishment. OSHA said in its press teleconference that it sees a report as opening a dialog with the employer and that its decisions regarding whether an investigation will be opened will be case-specific. OSHA is most interested in knowing what caused the injury, what the employer intends to do as a result of the incident, and putting the employer on notice–all of which it expects will make an employer more likely to take the necessary steps to rectify the situation. Based on OSHA's conversation(s) with an employer, OSHA indicated that it may decide to take no further action, roll the employer straight into a consultation program, or conduct an inspection. Significantly and most troubling, OSHA also stated during its press teleconference that it will make an employer's report of all fatalities, hospitalizations, amputations, and/or eye losses publicly available on the OSHA website. OSHA stated that it believes that public disclosure will incentivize employers to ensure a safe workplace for their employees.
Nickole Winnett is a senior associate in the Washington, D.C. Region Office of Jackson Lewis P.C. and is a member of the Workplace Safety and Health practice group. She heads the Workplace Violence sub-specialty practice group and is a member of the Process Safety Management sub-specialty practice group. Winnett is also co-author of Jackson Lewis' OSHA Law Blog.