On September 11, 2014, OSHA issued new regulations that will change the reporting requirements for workplace injuries and fatalities. These changes will significantly affect contractors. The new reporting requirements become effective on January 1, 2015. (By contrast, OSHA’s existing record keeping obligations – including Forms 300, 301, and 300A for covered employers with 11 or more employees – remain. But, OSHA did designate additional employer classifications that will be required to maintain these OSHA records.) The new reporting requirements will dramatically increase reporting to OSHA about threshold injury and illness and will significantly increase the likelihood of an OSHA inspection after an onsite accident, injury, or illness. The new regulations will institutionalize the local practice of first responders’ contacting OSHA when responding to a workplace incident.
Overview
Subject to certain limitations listed below, under the new reporting requirements, an employer is now required to report (1) an employee fatality resulting from a reportable work-related incident; (2) any inpatient hospitalization of one or more (formerly three or more) employees caused by a work-related incident; (3) any employee amputation (inpatient or outpatient) as a result of a work-related incident; and (4) any employee loss of an eye (inpatient or outpatient) from 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 an employer must report inpatient hospitalizations that involve care or treatment. OSHA defines an inpatient as a person who is “formally admitted” to a hospital or clinic and stays at least one night. 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, before contacting OSHA, discuss the incident with counsel or the insurer. Otherwise, the report may be considered an admission or evidence that the employer believed the heart attack was work related.
Reporting Deadlines
OSHA sets time limits for whether an event is reportable. Any death that occurs within 30 days of a work-related incident must be reported to OSHA. The duty to report an in-patient hospitalization, amputation, or loss of an eye is limited to occurrences within 24 hours of the work-related incident. If the fatality occurs more than 30 days after the work-related incident, or the inpatient hospitalization, amputation, or loss of an eye occurs more than 24 hours after the work-related incident, the employer does not have to report the event to OSHA. However, the employer must record the event on its OSHA injury and illness forms.
These regulations also set time limits within which a covered employer must report a covered event. A covered fatality must be reported within eight hours of the employer’s learning of the fatality. In regard to an inpatient hospitalization of one or more employees, an amputation, or a 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 eight hours after knowledge of a reportable fatality and within 24 hours of notice of a reportable inpatient hospitalization, amputation, or loss of an eye.
Reportable Events: Who Must Report, How to Report, and What Must Be Reported
In addition to the new reporting requirements, OSHA has updated who must keep OSHA records and who is exempt. Because most 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 if 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 report the fatality, inpatient hospitalization, amputation, or loss of an eye, using either an 800 number or the reporting application.
All employers subject to OSHA must report a covered fatality, inpatient hospitalization, amputations, 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 before contacting OSHA, you obtain and record this information. This will avoid being unprepared to answer OSHA questions (possibly causing inadvertent omission of required information) and will document the information you provided.
In regard to motor vehicle accidents, if one should occur in a construction work zone, it constitutes a covered event that the employer must report to OSHA. If the motor vehicle accident occurs on a public street, 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. (Construction industry employers are generally required to keep these records. However, employers with 10 or fewer employees 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 new hires at OSHA and should anticipate an inspection whenever there is a reportable worksite injury or hospitalization. Failure to timely report will subject the employer to a citation. Be prepared. Develop an updated OSHA reporting and inspection-response protocol.