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Beware of Stepped-Up Reporting Rules

WEDNESDAY, SEPTEMBER 24, 2014

By Eric J. Conn


This month has brought an unwelcome announcement from the Occupational Safety and Health Administration: a sweeping amendment to its Injury & Illness Recordkeeping regulations.

The new Final Rule, announced Sept. 11, makes four major changes:

Injured Worker
©iStock / mumininan

Beginning Jan. 1, employers must report to OSHA the overnight hospitalization of any injured employee, except a stay for observation.

  1. Changes to the list of low-hazard industries partially exempt from recordkeeping requirements (such as maintaining an OSHA 300 log), updating old SIC classification codes and Bureau of Labor Statistics data;
  1. The addition of amputations (including partial amputations) and loss of an eye as injuries that must proactively be reported to OSHA, regardless of the medical treatment provided;
  1. The requirement to proactively report within 24 hours an injury to a single employee if the injury requires overnight hospitalization for more than just observation; and
  1. OSHA's plan to publish these reports of injuries on its public website.

Employee fatalities still must be reported to OSHA within eight hours of the incident.

Increased Reporting ... and Inspections

The rule this replaces was known as the “Fat-Cat” reporting rule, because it required employers to report to OSHA within eight hours all incidents that resulted in an employee fatality (fat) or catastrophe (cat).

Files
©iStock / Nikada

The new rule will dramatically increase the amount of incident reporting, which is sure to increase the number of OSHA inspectionsand, in turn, post-inspection citations.

A catastrophe was defined as an incident that resulted in the overnight hospitalization for treatment of three or more employees.

The new rule will dramatically increase the number of incidents that employers have to report directly to OSHA.

As the Assistant Secretary of Labor for OSHA, Dr. David Michaels, explained in a news release, OSHA considers “hospitalizations and amputations [to be] 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.”

Accordingly, this new rule will also dramatically increase the number of incident inspections that OSHA conducts.

And experience also tells us that OSHA does not leave incident inspections without citing something.

Shaming Employers

Another troubling element of the reporting changes is OSHA’s intention to follow the same model of public shaming that the agency introduced in its other recent proposed change to the recordkeeping regulations (that is, its plan to publish employers’ 300 Log data).

Industrial accident scene
©iStock / deadandliving

Like another recent reporting proposal by OSHA, this new reporting rule will make employer illness and injury data publicly available online.

Specifically, OSHA plans to publicize all reports of fatalities and severe injuries on its public website.

OSHA stated in a news release that it believes that public disclosure will incentivize employers to ensure a safe workplace for their employees.

This, of course, wrongly pre-supposes that all workplace injuries are a result of employers not take taking steps to provide a safe workplace, and unfairly lumps all workplace injuries into a single bucket, regardless of the cause.

Online Reporting Caveat

The rule goes into effect Jan. 1, 2015, for all employers covered by federal OSHA. State OSHA Programs are required to implement this change, but they may do so on a different schedule than federal OSHA.

OSHA portal
OSHA

Employers should be wary about using the online reporting tool, which will require them to enter potentially actionable information that may not yet be clear in the hours following an incident.

Another interesting development that accompanied OSHA’s announcement was the introduction of a web portal where employers can electronically report incidents, in addition to the historical telephone reporting options (calling OSHA’s confidential number [1-800-321-OSHA] or the local OSHA Area Office).

I would caution employers against using this new tool, because it will require employers to memorialize an explanation about an incident that just occurred a few short hours earlier.

At this point, employers cannot really know enough to commit to a description in writing that may later be used against them in enforcement proceedings.

ABOUT THE BLOGGER

Eric J. Conn

Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Group. His practice focuses exclusively on issues involving occupational safety and health law. OSHA Watch offers general information but should not be construed as legal advice. Employers are always advised to seek appropriate counsel for individual issues. Contact Eric.

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Tagged categories: Epstein Becker Green; Health & Safety; Health and safety; Laws and litigation; OSHA; North America

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