Ratcheting up Reporting Rules

Everyone agrees on the merits of reducing accidental workplace fatalities and serious injuries.

Yet, according to some employment lawyers, including the former head of the U.S Department of Labor’s Occupational Safety and Health Administration, impending OSHA reporting rule changes that go into effect on Jan. 1 are going to make things look worse.

Under the revised rule, employers will be required to notify OSHA of work-related fatalities within eight hours, and work-related in-patient hospitalizations, amputations or loss of an eye within 24 hours.

Previously, OSHA’s regulations required report of work-related fatalities and in-patient hospitalizations of three or more employees.

“That could lead to huge numbers in terms of reporting.” — Ed Foulke,partner, Fisher& Phillips

“Under the former rules, very rarely would more than three people go to hospital in a single incident, so the new rules can exponentially increase reporting,” said Ed Foulke, former head of OSHA under George W. Bush and a partner with Fisher& Phillips in Atlanta.

Also, all employers covered by the Occupational Safety and Health Act, even those who are exempt from maintaining injury and illness records (10 or fewer employees), are required to comply with OSHA’s new reporting requirements.

Foulke said the injury reporting requirements are “significant” changes.

To complicate matters, he said, OSHA has expanded the definition of amputations, so that even the loss of the tip of the finger, for example, without bone loss, now is considered an amputation, which is a reportable injury.

“That could lead to huge numbers in terms of reporting,” he said.

Foulke also said that the updated regulations add 25 new industries — such as “bakeries and tortilla manufacturers,” auto dealers, building supplies, beer, wine and liquor stores, performing arts companies and lessors of real estate — to those required to keep OSHA 300 injury and illness records.

Those records will be posted on the OSHA website, he said.

“OSHA never talked about it during this rule-making process for three years,” he said. “Plaintiff’s attorneys, unions, anti-industry groups and other organizations can easily obtain that information, and that could lead to increased litigation.”

According to the Bureau of Labor Statistics, 4,405 workers died on the job in 2013.

In announcing the new rules on Sept. 11, U.S. Secretary of Labor Thomas Perez said workplace injuries and fatalities are “absolutely preventable, and these new requirements will help OSHA focus its resources and hold employers accountable for preventing them.”

OSHA said it will not do an inspection based on every report, but rather will “interact” with the employers who file reports.

The “most obvious effect” of the new rules, said Bill Principe, a partner in Constangy’s Atlanta office, “is that when you report one of these types of cases, you can almost expect an OSHA inspection. And that gives you a chance to prepare properly. But no one knows at this point how long you are going to have to prepare.”

“A relatively minor accident could trigger additional citations.” — Nickole Winnett, senior associate, Jackson Lewis

On the flip side, Principe said, the new regulations could overwhelm OSHA, with the sheer volume of new data coming in.

“I would believe that these types of report cases almost would take the place of general inspection schedules,” Principe said. “OSHA hasn’t said that the call-ins definitely will trigger an inspection, but that could turn out to be the case.”

Nickole Winnett, a senior associate in the Washington, D.C. office of Jackson Lewis, said the new OSHA rules “will require additional resources and time spent on providing the information, responding to follow up questions and, in some cases, being investigated for these types of accidents.”

She noted that once OSHA decides to do a worksite inspection, it can look for other safety issues as well.

“A relatively minor accident could trigger additional citations,” Winnett said.

The best strategy for employers, Foulke said, is to know what OSHA standards apply to them and make sure the company is in full compliance.

“They need to know what is required within every applicable standard,” he said, estimating, for example, that 50 percent of employers in the U.S. today have not done a basic workplace hazard assessment. “It’s important for several reasons, including maintaining a safer workplace.”