Ratcheting Up Reporting Rules

OSHA's new workplace death and serious-accident reporting rules could have employers scrambling to ensure they are reporting a much broader array of workplace incidents.

Monday, October 6, 2014
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Everyone agrees on the merits of reducing accidental workplace fatalities and serious injuries.

Yet, according to some employment lawyers, including the former head of the U.S Department of Labor's Occupational Safety and Health Administration, impending OSHA reporting rule changes are going to prove interesting for both employers and OHSA itself in the quest to reach that worthwhile goal.

Employment attorneys say that OSHA's new rules, which go into effect on Jan. 1, 2015, will create a dramatic change in the way employers are required to report their workplace fatalities and serious injuries.

Under the revised rule, employers will be required to notify OSHA of work-related fatalities within eight hours, and work-related in-patient hospitalizations, amputations or loss of an eye within 24 hours. Previously, OSHA's regulations required an employer to report only work-related fatalities and in-patient hospitalizations of three or more employees.

Also, all employers covered by the Occupational Safety and Health Act, even those who are exempt from maintaining injury and illness records (10 or fewer employees), are required to comply with OSHA's new reporting requirements.

Ed Foulke, former head of OSHA under George W. Bush and a partner with Fisher & Phillips in Atlanta, calls the injury reporting requirements "significant" on two counts. For one, he says, OSHA has expanded the need for OSHA call-ins by employers, particularly the change from three to one when it comes to hospitalizations, amputations and loss of an eye.

"Under the former rules, very rarely would more than three people go to hospital in a single incident, so the new rules can exponentially increase reporting," he says. adds that, to complicate matters, OSHA has expanded the definition of amputations, so that even the loss of the tip of the finger, for example, without bone loss, now is considered an amputation, which is a reportable injury.

"That could lead to huge numbers in terms of reporting," says Foulke, adding that another interesting provision in the updated regulations is the addition of 25 new industries that are required to keep injury and illness records -- called "OSHA 300" reports. That list, which will be posted on the OSHA website, includes segments such as "bakeries and tortilla manufacturers," auto dealers, building supplies, beer, wine and liquor stores, performing arts companies and lessors of real estate.

"OSHA never talked about it during this rule-making process for three years," he says. "Plaintiff's attorneys, unions, anti-industry groups and other organizations can easily obtain that information, and that could lead to increased litigation."

According to the Bureau of Labor Statistics, 4,405 workers died on the job in 2013. U.S. Secretary of Labor Thomas Perez, when announcing the new rules on Sept. 11, said workplace injuries and fatalities are "absolutely preventable, and these new requirements will help OSHA focus its resources and hold employers accountable for preventing them."

"Hospitalizations and amputations are sentinel events, indicating that serious hazards are likely to be present at a workplace and that an intervention is warranted to protect the other workers at the establishment," says David Michaels, assistant secretary of labor for occupational safety and health, in a statement when the new rules were released.

At the announcement, OSHA said it will not do an inspection based on every report, but rather will "interact" with the employers who file reports. OSHA's Michaels said the idea is that this interaction will prompt the employers to be more attentive to hazards and to take actions to prevent additional incidents.

Bill Principe, a partner in Constangy's Atlanta office, agrees that the new OSHA regulations represent a dramatic change in that employers may face an inspection for every call into OSHA, though that's not necessarily a negative.

"The most obvious effect is that when you report one of these types of cases, you can almost expect an OSHA inspection. And that gives you a chance to prepare properly," he says. "But no one knows at this point how long you are going to have to prepare."

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On the flip side, Principe says, the new regulations could be overwhelming to OSHA, with the sheer volume of new data coming in.

"I would believe that these types of report cases almost would take the place of general inspection schedules," Principe says. "OSHA hasn't said that the call-ins definitely will trigger an inspection, but that could turn out to be the case."

Nickole Winnett, a senior associate in the Washington, D.C. office of Jackson Lewis, says the new OSHA rules certainly will mean more reporting for HR departments or risk managers, depending on who has that responsibility. As a result, she says, employers can expect a more intense OSHA focus when an accident occurs at the worksite.

"It will require additional resources and time spent on providing the information, responding to follow up questions and, in some cases, being investigated for these types of accidents," she says. While employee safety and health is obviously important, Winnett adds, the current rule - having to report only when three or more employees require in-patient hospitalization from a single incident - indicates a much more hazardous workplace issue causing the event than one involving a single employee.

Also, she says, once OSHA decides to do an inspection and comes on a worksite, it can spend additional time looking for other issues.

"A relatively minor accident could trigger additional citations," Winnett says.

Foulke says that the best strategy for employers is to know what OSHA standards apply to them and make sure they are in full compliance.

"They need to know what is required within every applicable standard," he says, estimating, for example, that 50 percent of employers in the U.S. today have not done a basic workplace hazard assessment. "It's important for several reasons, including maintaining a safer workplace."

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