New OSHA Rule Requires Employers to Self-Report Severe Injuries Which Will Be Made Public
On September 11, 2014, the Occupational Safety and Health Administration announced a revision to its injury reporting rules that will take effect January 1, 2015. The revision adds a surprising new requirement that has caught employers and employer groups by surprise.
Previously, OSHA had required an employer to notify OSHA upon the death of an employee or hospitalization of three or more employees. That notice was required within eight hours of the event.
Three years ago OSHA announced a proposal to add a requirement to report the hospitalization of one employee (instead of three), an amputation or the loss of an eye. Under the proposed rule, those reports would be required within 24, rather than eight, hours of the event or the employer’s learning of the event. The new final rule announced last week includes those requirements.
However, the final rule adds a further requirement that was neither published nor anticipated. The rule requires that OSHA post any mandated report online, for the entire world to see. Of course, any such publication will have the effect of shaming the reporting employer, which is an approach the Agency has used extensively in recent years. (See our previous client alert of July 30, 2013, entitled “The Shame Game.”)
What has many employer groups, including the U.S. Chamber of Commerce, upset is that at no time prior to the final rule had OSHA given notice to the public that it intended to publish the required employer notices or an opportunity for the public to comment on that intention. Since OSHA will be making the reports of fatalities, hospitalizations, amputations, and eye losses public, it is likely the Agency will feel compelled to investigate as many reported incidents as possible. Every employer who makes a report under the new rule, therefore, should brace itself for an inspection by OSHA. The employer would be well-advised to contact legal counsel to assist in preparation of the notice to OSHA and preparation for an inspection.
Another element of the new rule, which impacts some specific industries, is a change by OSHA of the criteria for determining low risk industries exempt from OSHA recordkeeping (OSHA forms 300, 300A and 301). Industries that previously had not been required to keep these records, but that will have to start doing so January 1, 2015, include: automobile dealerships, bakeries, liquor stores, museums, family service organizations (such as child and youth services), and organizations providing services for the elderly and people with disabilities.