BE PREPARED: OSHA’S NEW RULE ON REPORTING SERIOUS WORKPLACE INJURIES AND DEATHS – EFFECTIVE 1/1/2015

By Henry L. Goldberg,

Managing PartnerBeginning January 1, 2015, all contractors located in states under the Federal Occupational Safety & Health Administration's ("OSHA") jurisdiction, such as New York, must follow OSHA's new rule (20 CFR 1904) on reporting serious workplace injuries and deaths. Under this new rule, employers must still notify OSHA of any work-related deaths within eight hours, but now they must also notify OSHA of any work-related in-patient hospitalizations , losses of an eye, or amputations within twenty-four hours of occurrence.

The old OSHA rule required employers to notify OSHA of work-related deaths within eight hours, but only required notification within twenty-four hours of any in-patient hospitalizations of three or more employees. Prior to the new OSHA rule, notification was not necessary for single in-patient employee hospitalizations, losses of an eye, or amputations.

According to OSHA, this new rule was promulgated to enable it to more effectively focus its efforts on preventing severe workplace injuries and deaths by collecting pertinent information on what occurs in the field. This new data will enable OSHA to identify employers and industries where employees are at the greatest risk of harm and target its compliance assistance and enforcement resources accordingly.

Some industries are partially exempt from maintaining illness and injury records based on the low death and injury rate in that industry. OSHA recently updated the list of industries that are partially exempt from maintaining illness and injury records as part of this new rule on death and serious injury reporting. Unless requested to do so in writing by OSHA, the Bureau of Labor Statistics ("BLS"), or a state agency operating under the authority of OSHA or BLS, employers in the partially exempt industries do not have to keep records of its employees' illnesses and injuries. The exemption also extends to companies with ten employees or less. While these "partially exempt" companies are not obligated to maintain records on illness and injuries in the workplace they are still obligated to follow the requirements of the new serious workplace injuries and death notice reporting rules discussed above.

As set forth by OSHA, the penalties for violating the reporting rules on serious workplace injuries and deaths are as follows:

  1. Where no records are maintained and there have been injuries or illnesses which meet the requirements for recordability, as determined by other records or by employee interviews, a citation for failure to maintain records shall normally be issued.
  2. Where no records are maintained and there have been no injuries or illnesses, as determined by employee interviews, a citation shall not be issued.
  3. When the required records are maintained but no entry is made for a specific injury or illness which meets the requirements for recordability, a citation for failure to record the event shall normally be issued.
  4. When the required records are maintained but have not been completed with the detail required by the regulation, or the records contain minor inaccuracies, the records shall be reviewed to determine if there are deficiencies that materially impair the understandability of the nature of hazards, injuries and illnesses in the workplace. If the records are defective to this degree, a citation for failure to record shall normally be issued.
  5. In all other cases, the employer shall be provided information on maintaining the records for the employer's analysis of workplace injury trends and on the means to maintain the records accurately. The employer's promised actions to correct the deficiencies shall be recorded and no citation shall be issued.
  6. Where citations are issued, penalties shall be proposed only in the following cases:
    1. Where OSHA can document that the employer was previously informed of the requirements to keep records; or,
    2. Where the employer's deliberate decision to deviate from the recordkeeping requirements, or the employer's plain indifference to the requirements, can be documented.

Citations for either serious or non-serious violations impose a maximum penalty per individual violation of $7,000. Furthermore, for the more serious offense of a deliberate or willful violation a minimum penalty of $5,000 per violation is imposed up to a maximum of $70,000 per violation. For more information on individual violations and penalties, please refer to OSHA's Field Operation Manual Chapters 4 and 6.

G&C Commentary

Failure to comply with OSHA's new rule (20 CFR 1904) is not an option and penalties can be severe. It is important to note that this new rule does not come into effect until January 1, 2015. Therefore, your firm has time to create proper record keeping procedures to ensure compliance with the new OSHA rule. Even if your company has a procedure in place for maintaining illness and injury records and reporting such adverse events to OSHA, the procedure must be updated to ensure that single employee in-patient hospitalizations, amputations, and eye losses are now promptly reported to OSHA within twenty-four hours of the event in order to comply with the new OSHA rule.