The federal Occupational Safety and Health Administration (OSHA) has updated its requirements for reporting fatalities, injuries, and illnesses. These reporting requirements commence January 1, 2015. (OSHA’s record keeping requirements remain the same, with the exception, that certain previously exempt employers are now covered.) These new reporting requirements are expected to significantly increase the likelihood of an OSHA inspection after an onsite accident, injury, or illness and will institutionalize the local practice of first responders’ contacting OSHA when responding to a workplace incident.
Subject to certain limitations listed below, under the new reporting requirements, an employer is required to report (1) an employee fatality if it is the result of a work-related incident; (2) any inpatient hospitalization of one (formerly three) or more employees as a result of a work-related incident; (3) any employee amputation as a result of a work-related incident; and (4) any employee loss of an eye as a result of a work-related incident. Under the new regulations, an employer does not have to report an inpatient hospitalization that involves only observation or diagnostic testing, but is required to report inpatient hospitalizations that involve care or treatment. Under the new OSHA regulation, if a heart attack is a work-related incident, the employer must report it to OSHA. The regulation goes on to state that the OSHA Area Director will decide whether to investigate the incident. Because of the workers’ compensation implications of designating a heart attack as work-related, the employer should discuss the incident with counsel or the insurer before contacting OSHA. Otherwise, the report may be considered an admission or evidence that the employer believed the heart attack was work related.
The duty to report a fatality to OSHA is limited to deaths occurring within 30 days of the work-related incident. The duty to report an inpatient hospitalization, amputation, or loss of an eye is limited to occurrences within 24 hours of the work-related incident. However, even if the fatality, inpatient hospitalization, amputation, or loss of an eye occurs beyond the time window that would require reporting, the employer must still record the event on its OSHA injury and illness records.
These regulations require employers to report a “covered” fatality within eight hours of learning of the fatality. In regard to inpatient hospitalization of one or more employees, an amputation, or loss of an eye, employers are required to report to OSHA within 24 hours of learning of these events. If an employer does not learn about a reportable fatality, inpatient hospitalization, amputation, or loss of an eye at the time of the incident, it must still report these events to OSHA within the following time periods: eight hours after knowledge of a reportable fatality and 24 hours within notice of a reportable inpatient hospitalization, amputation, or loss of an eye.
In addition to the new reporting requirements, OSHA has updated who must keep OSHA records and who is exempt. Because most Utility Contractors’ Association of New England, Inc. (UCANE) contractors and subcontractors are subject to the existing OSHA record keeping requirements, this article will not address those changes. However, if you were previously exempt, you should review the new record keeping requirements to determine whether you are no longer exempt, or you should contact counsel.
An employer has three options for reporting a reportable event: (1) by telephone to the OSHA area office nearest the site of the work-related incident; (2) by telephone to the 24-hour OSHA hotline (1-800-321-OSHA or 1-800-321-6742); or (3) electronically using the event-reporting application found on OSHA’s website. In the event the area office is closed, the employer must use one of the other two means to report the fatality, inpatient hospitalization, amputation, or loss of an eye.
All employers subject to OSHA must report a covered fatality, inpatient hospitalization, amputation, or loss of an eye, even if the employer is exempt from maintaining OSHA injury and illness records and logs.
When reporting a covered incident, OSHA requires the following information: (1) the establishment’s name; (2) the location of the work-related incident; (3) the time that the work-related incident occurred; (4) the type of reportable event (i.e., fatality, or covered inpatient hospitalization, amputation, or loss of an eye); (5) the number of employees who suffered a reportable fatality, inpatient hospitalization, amputation, or loss of an eye; (6) the names of these employees; (7) the identity of the employer’s contact person and his or her phone number; and (8) a brief description of the work-related incident. It is recommended that you obtain and record this information before contacting OSHA. This will avoid your being unprepared to answer OSHA questions or inadvertently omitting required information, and it will document the information you provided.
In regard to motor vehicle accidents, if such an accident occurs in a construction work zone, the employer must report this covered event to OSHA. If the motor vehicle accident occurs on a public street, on a highway, or outside a construction work zone, an employer is not required to report the event to OSHA. However, even though the employer does not have to report this incident, it must record it on its OSHA injury or illness records, provided that the employer is required to keep these records. (Employers with 10 or fewer employers during a calendar year are not required to keep OSHA injury and illness records unless OSHA or the Bureau of Labor Statistics informs the employer in writing that it must keep these records.) Likewise, if the covered incident occurred on a commercial or public transportation system (train, subway, bus, airplane, etc.), the employer is not required to report the incident. But, as noted above, the employer must record the event on its OSHA injury or illness records and log (provided that the employer is required to maintain these records).
Because of the new regulations, employers should expect that whenever there is a reportable worksite injury or hospitalization, there will be an OSHA inspection. Failure to timely report will subject the employer to a citation. Be prepared. Develop an updated OSHA reporting and inspection response protocol.