The Occupational Safety and Health Administration in the United States will be enforcing changes to their recordkeeping and reporting rule that will apply to all 29 OSHA covered states. Other states with their own OSHA programs will have 6 months to implement the new rules, or develop their own, more stringent rules.
Previously, employers were not required by OSHA to report serious injuries inflicted on one individual on the job, such as workplace amputations, but rather were only required to report workplace fatalities and serious injuries to multiple workers. This new approach is intended to identify trends in hazardous areas within a workplace, to identify wholly unsafe work environments and practices, and to provide OSHA with the information needed to allocate resources properly, so as to drastically reduce workplace injuries and fatalities.
The story of Luis Rey Rivera Pavia is often cited throughout the resources discussing the need for change to the regulations. He was only one of the thousands of workers killed last year, when he entered a large wire manufacturing machine to retrieve a metal bar that had fallen into the machine, when a moving part struck and killed him. The light curtain safety mechanism on the machine had been disabled, and had it been left on, the machine would have automatically turned off when Luis entered the machine.
More importantly and quite shockingly was the fact that two workers had been previously seriously injured by the same machine, one resulting in an amputation and the other with a crushed forearm. If these two cases had been reported initially, a trend could have been noticed by OSHA and necessary steps been taken to amend the issue, and Luis Rey Riviera Pavia would likely be alive today.
Under the new standard, all employers are required to adhere to the following OSHA reporting requirements:
- Within eight (8) hours after the death of any employee as a result of a work-related incident; and
- Within twenty-four (24) hours after the in-patient hospitalization of one or more employees or an employee’s amputation or an employee’s loss of an eye, as a result of a work-related incident.
- Additionally, the new reports of severe injuries and illnesses will all be made public on the OSHA website, which will provide employers, employees, job seekers, researchers, and the general public with important information about health and safety and potentially unsafe workplaces.
- The list of industries that are exempt from routinely keeping OSHA injury and illness records has been updated, due to fairly low occupational injury and illness rates. (That list can be found here).
- Employers with ten or fewer employees at all times during the previous calendar year are exempt from keeping records (but not exempt from reporting workplace injuries that fall under the new rules). Note that this recordkeeping rule has not changed from previous years.
This post will not be an in-depth look into the rules themselves, but rather an overview of the implications that the rule changes will have on employers and employees. We will also provide links to relevant industry experts’ articles for a comprehensive look into important employer and employee considerations.
What do employers need to know about these changes?
There are numerous implications surrounding these new regulations and the onus will lie on the employer to adhere to the standards put in place by OSHA. Here are 7 things to consider as an employer with the new regulations.
1. Increased reporting leads to increased inspections- know your responsibilities as an employer
The expanding criteria of reportable incidents will mean an increase in reports to OSHA or other state programs, which will also lead to more on-site inspections. OSHA will not have the resources to investigate every one of the estimated 6,300 amputation reports, nor the approximately 112,000 in-patient hospitalizations that the agency is anticipating that it will receive next year; however, the rate of on-site inspections will no doubt increase. The increased number of reportable incidents will mean that OSHA will be able to more effectively allocate resources to do inspections where they are needed most.
On average, 13 Americans are killed on the job every day of the year. Additionally, thousands die as a result of workplace disease and almost four million workers each year are seriously injured at work. While these staggering numbers alone should be reason enough to ensure a safe workplace for all employees, sometimes there needs to be a stronger nudge to ensure higher levels or compliance around workplace safety.
Employers that understand their responsibilities and take steps to ensure compliance will not only likely reduce the incidence of serious injuries and fatalities, but if an accident does occur, the employer is able to show that the necessary precautions were taken to keep workers safe. Often, the responsibilities of an employer can often be unintentionally overlooked, so it is important for employers to understand their responsibilities to their workforce in order to keep workers safe and to avoid costly fines. (For a list of employer responsibilities, click here).
2. Understand ambiguous terms and play it safe
What is classified as an amputation? What happens if an eye is lost eventually as a result of a previous workplace injury, but is not lost immediately? When does the 24-hour countdown start for when an employer must notify OSHA of inpatient hospitalization?
It is especially important for employers to understand all the stipulations of the rule changes so that if an issue arises, there is no question about the required course of action. Researching the conditions of the new rules and erring on the side of caution when not knowing exactly what to do will be crucial in avoiding fines for violations of the OSHA injury reporting rules.
Again, the FAQs on the OSHA recordkeeping page provide good insight into necessary courses of action for unique circumstances. It may take some time and research to fully understand the requirements, but it will be worth it in the long run.
3. New OSHA regulations are not the same as workers compensation
An OSHA reportable incident does not necessarily mean that it automatically falls under the criteria of being compensable under workers compensation law. Conversely, simply because an incident does not seem to be applicable under workers compensation law, does not mean that it should not be recorded or reported.
For example, a car accident that occurs on a public highway that results in the serious injury of an employee on duty is not reportable because it did not occur in the workplace, but it must be recorded in the injury and illness records, and it may still be subject to workers compensation. The rules and criteria for both are independent of each other, do not influence one another, and must be viewed and acted upon separately.
This can be especially important for employees that are responsible for general record keeping, because it is likely that the same individual that keeps records for workers? compensation will be the person to keep injury and illness records for OSHA purposes. It will therefore be important that these individuals understand the differences between OSHA recording requirements and worker’s compensation.
4. Understand employer and employee rights during inspections
With an increase in inspections likely to occur, it is important for employers and employees to understand their rights and responsibilities before, during, and after inspections. Rather than give a brief overview of a very intricate topic, here is a great report from Sherman & Howard LLC outlining the rights and responsibilities of employers before, during, and after the inspection process. It may be worth reading through the report initially, and keeping a copy available in case it is needed. Another good resource is here from Epstein Becker & Green, a large health care law firm, which includes a shorter article about employers rights during an inspection, as well as links to more in-depth resources about employers rights and responsibilities.
Employee rights during and after an OSHA inspection can be viewed in a publication on the OSHA website by clicking here. The section pertaining specifically to workers rights during an inspection begins on page 13, but the whole publication discusses employees rights in general and is a good resource for any worker covered by OSHA to go through.
5. Companies with slack safety standards may not fare well
Apart from the likelihood of being subjected to fines by violating OSHA regulations, companies that do not employ strong cultures of safety may suffer more with the publicity of serious injury and fatality reporting.
Beginning next year, it will be possible for anyone to view reports pertaining to workplace injuries and fatalities from the OSHA website. This could present issues for employers that do not take safety seriously and are found to have one or more incidents on their site. This may result in skilled and sought-after workers avoiding certain companies whose safety reputations have been tarnished. If there is a possibility that an employer is not taking their responsibilities seriously, now may be a good time to overhaul the safety culture and work towards being a sought-after and safe workplace.
Alternatively, employers and companies that take safety seriously and who do their best to avoid workplace accidents will enhance their image as safe workplaces and attract talented workers.
6. There are free resources for those that need them
For businesses across the country that need additional help understanding the requirements, there are free safety and training resources available online.
OSHA also provides a free on-site consultation program for small and medium-sized businesses for in person advice and guidance into how to improve workplace safety. These consultations are separate from enforcement and will not result in penalties or citations. Consultants come on site to help employers identify workplace hazards, provide advice on compliance with OSHA standards, and even help to establish injury and illness prevention programs.
For a comprehensive look into the consultation services, here is a link to an OSHA publication outlining the details of these options.
7. Lives really could be saved (and potentially a lot of money, too)
Complete compliance with the new OSHA regulations will take time, effort, and more paperwork than before; however, to the individuals whose lives could be saved through this more stringent proactive approach to safety, and to their loved ones, the extra work is worth it. To those employers as well, who take precautions and adhere to guidelines, the money saved from a lack of violations could be significant.
Just like in the Luis Rey Rivera Pavia example above, if a trend in a lack of dedication to employee safety is shown, there is a likelihood that further injury or fatalities may be reduced if the issue can be addressed and fixed.
As well, in the case of Wire Mesh Corporation (Luis’ employer), if the workplace fatality, and/or one of the serious injuries had been avoided, there would have been a much smaller fine for violations. More importantly, there would have been one less injured worker and one less life lost on the job.
Another Good Resource
Here is a very well written, in-depth explanation of ten mistakes that the author, Arthur G. Sapper, Partner at the law firm, McDermott Will & Emery, and their team of lawyers, commonly see employers make when trying to comply with OSHA regulations. http://ehstoday.com/safety/news/osha-recordkeeping-questions-3427