OSHA’s New Injury & Fatality Reporting Rule: Time to Put OSHA on Speed Dial

Eric J. Conn

Chair of the national OSHA • Workplace Safety Practice Group at Conn Maciel Carey PLLC

January 8, 2014

ERIC J. CONN is Chair of the OSHA • Workplace Safety Practice Group at Conn Maciel Carey PLLC, where his practice focuses on all aspects of occupational safety & health law:

Represents employers in inspections, investigations & enforcement actions involving OSHA, CSB, MSHA, & EPA

Responds to and manages investigations of catastrophic industrial, construction, and manufacturing workplace accidents, including explosions and chemical releases

Handles all aspects of OSHA litigation, from criminal prosecutions to appeals of citations

Writes and speaks regularly on safety & health law issues

Conducts safety training & compliance counseling

Eric J. Conn econn@connmaciel.com / 202.909.2737

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Evolution of OSHA’s injury and fatality reporting requirements

Specifics of the new reporting rule

Impact of the new reporting regulation

Another “proposed” rule re: submission of injury data to OSHA

Agenda

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Injury & Fatality Reporting Rule Historic Revisions

Year Report What? By When? How?

1971 Fatality;

5+ Hospitalizations 48 hours

Phone (nearest Area Office);

Telegraph

1994 Fatality;

3+ Hospitalizations 8 hours

Telephone;

Nearest Area Office -OR-

New central 24-hour 800 #

2014

Fatality;

1+ Hospitalization;

Amputation;

Loss of eye

8 hours (fatality)

24 hours (others)

Telephone; -OR-

New web-based portal

On 9/11/14, OSHA amended its Injury and Illness Recordkeeping standard in five important ways:

1. Report to OSHA in 24 hours any in-patient hospitalization of a single employee (formerly 3+)

2. Report w/in 24 hours any amputation or loss of eye

3. Report may be completed via new on-line portal

4. Plan to publish reporting data

5. Revise “low-hazard” recordkeeping criteria exemption

Injury & Fatality Reporting Rule

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Important Time Periods?

• Within 8 hours of when you learn of the fatality

• Within 24 hours of when you learn about the serious injury

• Reportable only if:

– Fatality results within 30 days of the day of the incident

– Hospitalization occurs within 24 hours of the incident

– Amputation and eye loss occurs within 24 hours of the incident (except medical amputations)

Injury & Fatality Reporting Rule

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• “Formal admission to the in-patient service of a hospital or clinic for care or treatment”

• Does not include admission for observation or testing

• No longer requires overnight stay

• OSHA recognizes confusion about the term “admission” (i.e., means something different to different groups (insurers, hospitals, patients, etc.)

What Constitutes an “In-Patient Hospitalization”?

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• OSHA is working on guidance to clarify intent

• Employers should focus on whether handled as “in-patient” or “out-patient” -- more clearly understood

• OSHA provided examples to clarify its intent:

1. Employee breaks leg, goes to ER where is leg is set, and he is administered prescription drugs to treat pain before being released – Do NOT Report

2. Employee breaks leg, goes to ER where his leg is set, but where he begins to bleed out. ER replenishes blood before setting leg, but the hospital sends patient from ER to a ward where he is admitted for monitoring because of blood loss – Do NOT Report

What Constitutes an “In-Patient Hospitalization”?

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• The traumatic loss of a limb or appendage, that has been severed, cut off, amputated, either completely or partially

• Does not include avulsions, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth

• Does include fingertip amputations, with or without bone loss (how to distinguish from any other avulsion?)

• Also includes Medical amputations resulting from irreparable damage

What Constitutes an “Amputation”?

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• Fatalities or Injuries that result from a motor vehicle incident on a public road (except in construction work zones)

• Fatalities or Injuries that occur on a commercial or public transportation system (e.g., airplanes, subways, buses, trains, etc.)

• In-patient hospitalization for diagnostic testing or observation only

• Out-patient care or care given in a hospital when the worker is not formally admitted as “in-patient”

What Injuries Need Not Be Reported?

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• Establishment name

• Location of the work-related incident

• Type of reportable event (i.e., fatality, inpatient hospitalization, amputation or loss of an eye)

• Number of employees who suffered the event

• Names of the employee who suffered the event

• Employer contact person w/ contact information

• Brief description of the work-related incident

What Information Must Be Reported?

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“OSHA will now receive crucial reports of fatalities and severe

work-related injuries and illnesses that will significantly enhance the agency’s ability

to target our resources to save lives and prevent further

injury and illness.”

Impact of New Rule?

• Effective Date – Jan. 1, 2015

• State Plans must also adopt

• Sharp increase in reports to OSHA (25,000 more!)

• More reports = More Inspections/Citations

• Expand OSHA’s public shaming campaign 13

Final Injury & Illness Recordkeeping Rule

• Use caution if considering reporting via the new web portal:

– What you put in writing may be used against you later in enforcement proceedings or civil litigation

– Too soon to know enough to commit to any version of the incident explanation in writing

– Information will be publicly available

– Electronic security risks

On-Line Reporting - CAUTION

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Another Proposed Change to Recordkeeping Standard

On November 7, 2013, OSHA proposed additional changes to the Injury & Illness Recordkeeping Rule

2 Major Provisions:

1. Employers with 250+ workers must submit Injury & Illness Logs & Incident Reports to OSHA on a quarterly basis.

2. Employers with 20+ workers in “High Hazard Industries,” must submit Injury Summary Forms to OSHA on an annual basis. 15

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• Data to be submitted electronically through a “secure” website

• OSHA will publicize employer- specific injury information

– Data will be posted without context

• OSHA solicited comments from the public about the proposed rule through March 8th.

Recordkeeping & Reporting Rule

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• Triples the number of employers who are required to report injury & illness data (from annual BLS survey)

Recordkeeping & Reporting Rule

Employers w/ 250+ Employees

• 38,000 to 129,000 sites

• OSHA to receive detail on 1,325,000 cases!

Employers w/ 20+ Employees

• 160,000 to 440,000 sites

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• Proposal did not ID gaps in existing data or explain OSHA’s need for the data

• Increased risk of under- reporting of injuries

• Data to be used by unions for organizing

• Undermines “No- Fault” Injury & Illness RK Policy

• No capacity to use this much data

• Substantially underestimates time and financial burdens

Recordkeeping & Reporting Rule Industry Comments

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• August 14, 2014 - OSHA received OMB approval to reopen the rulemaking record

• So many flaws in the rule to address, but re-opened to go further

• Published a supplemental notice of proposed rulemaking focusing on one issue, employers’ practices that discourage injury reporting

• Responding to the universal complaints that this rule will lead to under-reporting/under-recording

Proposed Rule Revisited

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• OSHA floated language regarding:

–Requiring employers to inform employees of their right to report injuries and illnesses

–Requiring employers’ injury reporting requirements to be reasonable and not unduly burdensome

–Prohibiting employers from taking adverse action against employees for reporting injuries/illnesses

• Unnecessary proposal - already have Sec. 11(c)

Proposed Rule Revisited

Questions?

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Contact Information

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ERIC J. CONN Chair, OSHA • Workplace Safety Group

Conn Maciel Carey PLLC 202.909.2737

econn@connmaciel.com