On September 11, 2014, OSHA released the text of its Final Rule making changes to 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. State OSHA plans are encouraged to implement the changes by January 1, 2015, and are required to implement them no later than January 1, 2016.
The final rule includes only minor changes from the rule that OSHA proposed in June 2011. Like the proposed 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 changes and expands the requirements regarding reporting of “serious” work-related incidents to OSHA.
Changes regarding exemption from recordkeeping
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 2 or 3 digit SIC number, that are exempt from the recordkeeping requirements. OSHA refers to these as “partially exempt” because, despite being listed 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. For ease of reference, this memo refers to the listed industries as exempt.
The current 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% or less of the average LWDII rate for all of private industry during those years.
The new rule retains the “75% of private industry average” methodology but uses NAICS industry classifications, identifies industries according to 4-digit classification, and uses the DART (days away, restricted work, job transfers) rate that is 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.
It should also be noted that the separate exemption in 29 C.F.R. § 1904.1 for employers which employ fewer than 10 employees throughout the year is not changed by the new rule.
Changes regarding reporting incidents to OSHA
OSHA’s current rule, section 1904.39, requires employers to report work-related fatalities and work-related incidents involving the hospitalization of 3 or more employees. All such incidents must be reported within 8 hours of their occurrence. 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, 1-800-321-6742.
The new rule is a substantial expansion of OSHA reporting requirements. Reporting of work-related fatalities is not changed; they must be reported within 8 hours. However, under the new rule, all work-related incidents resulting in hospitalization of a worker must 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.” Thus emergency room visits are not covered, nor are admissions that are purely for observation or diagnostic testing.
In addition to hospitalizations, the new rule 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.” OSHA states that this definition is taken from the 2010 BLS OIICS Manual.
The new rule provides that fatalities must 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 an eye must be recorded if work-related, even if it does not have to be reported outside of these time frames.
One of the concerns expressed with the proposed rule was whether OSHA would be able to handle or make use of the vastly increased number of injury reports that will be receiving as of January 1. OSHA estimates that it will receive “30 times” as many reports under the new rule as it has received under the current reporting requirements.
In response to that concern, OSHA says that it expects that it will be able to respond in some manner to all reports, though not always with an inspection. Instead OSHA indicates that it will determine on a case by case basis whether to launch an inspection, contact the employer by phone or fax, or “provide compliance assistance materials” to the employer. In addition, OSHA has stated that it will post reports of injuries or fatalities on its website. Doing so would appear to require a considerable dedication of agency resources to scrub the information for any privacy concerns.