Under the Obama administration, the Occupational Safety and Health Administration (OSHA) enacted several changes to its reporting and record-keeping requirements for workplace injuries. Some of the changes were clearly aimed at improving workplace safety by ensuring that employers are held accountable for not adhering to the rules. Other changes, however, seemed to be punitive in nature.
More reportable injuries
Some of the changes were obviously intended to improve workplace safety. For instance, the changes broadened the scope of workplace injuries employers must report to OSHA. Previously, employers were required to report only fatalities or incidents resulting in the hospitalization of three or more employees. Under the 2015 changes, the requirements were expanded to include injuries resulting in the hospitalization of even a single employee as well as incidents resulting in an amputation or the loss of an eye. The changes also shortened the time frame for reporting severe injuries from three days to 24 hours and increased enforcement against employers that wantonly or repeatedly violate the rules.
H.J. Res. 83
Other changes seemed to be punitive. One rule, issued in January 2016, would have subjected employers to penalties accruing for up to five years after the date of an injury or illness if they failed to comply with OSHA’s record-keeping requirements. The rule was aimed at overturning the U.S. Court of Appeals for the District of Columbia Circuit’s decision that OSHA could not cite employers for more than six months of noncompliance with record-keeping requirements.
Fortunately for employers, the Trump administration rescinded the more burdensome aspects of the rule almost immediately. House Joint Resolution (H.J. Res.) 83, signed by President Donald Trump on April 3, 2017, rescinded the Obama-era rule that required employers to keep OSHA illness and injury records for five years following the initial occurrence. In doing so, the new rule reinstated the D.C. Circuit’s holding, effectively limiting the record-keeping requirement to six months. So far, none of the other reporting rules have been changed.
What employers need to know
Employers have eight hours to report fatalities. Employers have 24 hours to report (1) inpatient hospitalizations (formal admittance for care and treatment, not merely observation or diagnostics), (2) loss of an eye, and (3) amputations. Be careful: OSHA defines “amputation” broadly. Even the partial severance of a fingertip, with or without bone loss, triggers the reporting requirement. When in doubt, report it.
The clock starts when the employer learns of a qualifying incident. For example, imagine that a box falls on an employee’s head on December 1. He goes home and has no apparent intention of seeking medical attention. Unbeknownst to the employer, he is taken to the hospital on December 3. The employer doesn’t learn that the employee is hospitalized in a coma until noon on December 3. The employer must report the initial incident by noon on December 4. Although the employer knew about the incident several days earlier, it has 24 hours from the time it learns of the employee’s hospitalization to report the incident because hospitalization is what triggers the reporting requirement.
Employers must keep all OSHA-required records of work-related injuries or illnesses, including records of incidents they aren’t required to report, for six months. Severe injuries can be reported at www.osha.gov/report.html.
H.J. Res. 83 was heralded by some as a prelude to employer-friendly changes in OSHA rules, but there have been surprisingly few changes since then. You can take comfort in knowing you can let go of your OSHA records after six months, but the new administration doesn’t seem particularly eager to go backward on workplace safety. The more rigorous injury reporting requirements are likely here to stay.
Jacob M. Monty, the managing partner of Monty & Ramirez, LLP, practices at the intersection of immigration and labor law. He can be reached at jmonty@montyramirezlaw. com or 281-493-5529.