OSHA’s Revised Record-Keeping Rule Takes Place January 1, 2015
Last September, 2014, OSHA issued a final rule that revised its current record-keeping requirement standards. We believe that attendant with these new recordkeeping requirements will be increased OSHA inspections, so you will want to ensure that your company is in compliance.
Under the current rule, all employers are required to report to OSHA “[w]ithin eight (8) hours of the death of an employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident.” 20 C.F.R. § 1904.39(a). This requirement applies to all employers, regardless of whether they have 10 or fewer employees and regardless of whether they are exempt from maintaining recordkeeping logs.
Under the new rule, employers will be required to report to OSHA when even a single employee suffers a work-related in-patient hospitalization, an amputation, or the loss of an eye. OSHA defines hospitalization as “a formal admission to the in-patient service of a hospital or clinic for care or treatment” but not if only for observation or diagnostic testing.
While current reporting must be made by either telephone or in-person, employers will be allowed under the new rule to use a Web portal that OSHA is developing to file the reports electronically in addition to the current reporting options. As of this date the portal is still not operational, but OSHA reports that it is “coming soon” (https://www.osha.gov/report_online/).
Complicating matters further is whether you, as the employer, are working in conjunction with other companies at a multi-employer worksite. Under OSHA’s current enforcement policy, compliance officers are told to issue citations to any employer who: 1) exposed its own employees to a hazardous condition; 2) created a hazardous condition that endangered any employer’s employees; 3) was responsible for correcting a hazardous condition even if its own employees were not exposed to the hazard; or 4) had the ability to control to prevent or abate the hazardous condition through the exercise of reasonable superior authority.
Thus, the question is raised as to whether the controlling/responsible employer at a jobsite has OSHA liability if another employer, such as a subcontractor or temporary staffing service, fails to report an injury or illness to OSHA within the required timeframe? What obligations does the controlling/responsible employer have regarding compliance with the rule to inquire with other employers regarding reporting by the subcontractor or temporary staffing service?
At a minimum, in advance of January 1, employers should review their safety and injury protocols and make sure you are prepared to comply with OSHA’s new reporting and recordingkeeping requirements. And, because thousands of new employers will now be responsible for maintaining the OSHA 300 Log, those new to the process will want to initiate their training processes immediately so that the record-keepers can begin to properly document recordable injuries and illnesses in the Log. The person maintaining the Log will need to learn the various categories of recordable illnesses and injuries, how to evaluate medical records to determine whether an incident is recordable, and finally how to insert that data into the correct categories in the Log. (As a reminder, the Log must be completed for each recordable incident within 7 calendar days of the employer becoming aware that there has been a recordable injury or illness.)
And, as always, we recommend consulting local counsel on your rights and responsibilities as an employer being subjected to an OSHA inspection. You certainly don’t want to waive important rights respective to the scope of an inspection, or what documents the Agency is not entitled to, as well as how to respond to requests for employee interviews.
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