In the September 18, 2014 Federal Register, the Occupational Safety and Health Administration (“OSHA”) published revisions to 29 CFR Part 1904 with respect to updated reporting and recordkeeping requirements. Employers located in states under Federal OSHA jurisdiction (such as Pennsylvania and West Virginia) must comply with the new reporting and recordkeeping requirements effective January 1, 2015. Employers located in states operating their own safety and health programs (such as North Carolina and Virginia) should consult the applicable state plan. However, OSHA has encouraged states to implement the new reporting and recordkeeping requirements by January 1, 2015 or as soon thereafter as possible.
The new reporting and recordkeeping rule, generally, contains three types of changes:
(1) It updates the list of industries exempt from the reporting and recordkeeping requirements;
(2) It expands the list of work-related injuries and illnesses that must be reported to OSHA; and
(3) It expands the methods for reporting work-related injuries and illnesses.
Employers Exempt From Reporting and Recordkeeping Requirements
OSHA has updated the list of industries exempt from the requirement of keeping injury and illness records. Generally, employers have been exempt if they operated in industries with relatively low occupational injury and illness rates, based on the old Standard Industrial Classification (“SIC”) system, which used injury and illness data from the Bureau of Labor Statistics (“BLS”) from 1996-1998. OSHA will now base this exemption on the North American Industry Classification System (“NAIC”) and will use injury and illness data generated by the BLS from 2007-2009. The new rule continues the exemption for any establishment with 10 or fewer employees, regardless of industry classification.
Notifying OSHA of Work-Related Incidents and Fatalities
Under the old rule, employers were required to report a work-related fatality within eight hours (and only fatalities occurring within 30 days of work-related incident must be reported to OSHA) and a work-related incident resulting in the hospitalization of three or more employees within 24 hours. Reporting a work-related fatality within eight hours remains unchanged under the new rule. However, employers are now required to report all
work-related in-patient hospitalizations, amputations and losses of an eye within 24 hours.
Manner of Reporting
Covered fatalities and other incidents can be reported to OSHA by calling 1.800.321.OSHA (6742), calling the closest OSHA Area Office during normal business hours and using a new online form that is to be made available on the OSHA website at www.osha.gov
According to Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, OSHA is “developing a process to determine which [reported] incidents to inspect and which to handle using other types of investigations and interventions. . . . When an employer notifies [OSHA] of a severe injury among its workers, [OSHA] will ask what caused the injury and what the employer intends to do to address the hazard and prevent future industry injuries. The employer will then be on notice that OSHA knows about that severe injury, and will have made a commitment to address the hazard.” OSHA believes that this interaction, and potential OSHA follow-up, will prompt employers to take appropriate actions to remedy the hazard source.
In addition, OSHA intends to make the new reports of severe injuries and illnesses available to the public, on the OSHA website, with the expectation that this publication will prompt employers to provide safer workplaces because “no employer wants their workplace to be known as an unsafe place…or, in the behavioral economics term, [it will] ‘nudge’ employers to take steps to prevent injuries so they are not seen as unsafe places of work.”
In conjunction with the new reporting and recordkeeping rule, OSHA announced a Supplemental Notice of Proposed Rulemaking in the August 14, 2014 Federal Register concerning its intent to increase enforcement and oversight to ensure employers are not punishing or discouraging workers from reporting work-related injuries or illnesses. The Occupational Safety and Health Act, 29 U.S.C. § 660(c), prevents an employer from discharging or otherwise discriminating against an employee because that employee exercises any rights under the Act. Pursuant to 29 CFR § 1904.36, OSHA regulations prohibit an employer from taking an adverse action against any employee who reports a fatality, injury or illness. OSHA’s proposed rulemaking seeks to take advantage of these enforcement provisions in order to adopt more stringent, or perhaps more particular, guidelines to protect against retaliation under 29 CFR § 1904.35(a)(1) and (b)(1).
Employers already are required to provide ways for employees to report work-related injuries and illnesses promptly and to inform employees how work-related injuries and illnesses are to be reported. In support of its proposed rulemaking, OSHA is considering:
(1) A requirement that employers inform employees of their rights to report injuries or illnesses free of discrimination or retaliation;
(2) A requirement that injury and illness reporting requirements be reasonable and not unduly burdensome; and
(3) A prohibition against disciplining employees from reporting injuries and illnesses.
OSHA likely would take the position that it already has this authority and that these requirements already apply to employers. Specific issues mentioned in the Supplemental Notice of Proposed Rulemaking include the following:
“[A]n Employee might be discouraged from reporting an injury and illness if the employer required the employee to report in person at a location distant from the employee’s workplace, or if the employer penalized employees for failing to report an injury within specific time period (e.g., within 24 hours of an incident), even if the employees did not realize they were injured or made ill until after that time.”
“[A]dverse actions could include termination, reduction of pay, reassignment to a less desirable position, or any other action that might dissuade a reasonable employee from reporting an injury.” Among the “adverse actions” that were discussed at the public meeting were measures such as disqualifying an employee from a particular job for reporting two or more injuries or illnesses, requiring an employee who reported an injury to undergo drug testing when there was no reason to suspect drug use, automatically disciplining an employee who seeks or requires medical attention, and enrolling an employee who reports an injury in an accident repeater program or requiring counseling for the same reason. “Likewise, an employer rule to take adverse action against all employees who are injured or made ill, regardless of fault, would discourage reporting and would be prohibited by this rulemaking.” Also covered by the proposed rulemaking would be pre-textual disciplinary actions, such as “where an employer disciplines an employee for violating a safety rule, but the real reason for the action is the employee’s injury or illness report” or where the safety rule is only enforced, or enforced more severely, against workers who report work-related injuries or illnesses.
OSHA maintains that these prohibited actions would continue to violate 29 U.S.C. § 660(c), which, generally, is implicated only when an employee files a complaint about discrimination or retaliation. OSHA’s proposed new rule would create the additional remedy of allowing OSHA, on its own initiative, to issue a citation to an offending employer, thus triggering the various OSHA penalty provisions (such as a penalty for a willful violation), as well as the requirement that an employer must abate a violation, which might include, for example, reinstatement and back pay.
More detailed information can be found in updated 29 CFR Part 1904, which includes the OSHA regulations, 79 Fed.Reg. No. 181 (September 18, 2014) (the new rule for reporting and recordkeeping), 79 Fed. Reg. No. 157 (August 14, 2014) (the proposed rulemaking on discrimination or retaliation against employees who report injuries or illnesses), and on OSHA’s website at www.osha.gov