OSHA Expands Mandatory Reporting Requirements to Encompass Individual Employee Hospitalizations, Amputations, and Eye Loss

by Hodgson Russ LLP
Contact

In 2001, the Occupational Safety and Health Administration (OSHA) adopted a regulation requiring employers to report to their local OSHA office any work-related incidents that resulted in an employee death or the in-patient hospitalization of three or more employees. (See 29 C.F.R. § 1904.39.) That regulation required the report to be made within eight hours following the death or hospitalization. In most cases, an OSHA compliance officer would then be dispatched to conduct an investigation of the incident. As one might expect, the mandatory reporting of these types of incidents tends to result in the employer being thoroughly investigated and often cited for one or more OSHA violations. Where the employer had a past history of being cited for violating the same standard, repeat or willful violations might follow, which can carry penalties of up to $70,000 each.

According to the Bureau of Labor Statistics’ preliminary report for 2013, approximately 12 work-related deaths occurred every day in the United States, a total of 4,405 deaths. While these numbers have been trending downward through the years, the ten most frequently cited standards largely repeat themselves, with some limited variation from year to year. For 2013, the top ten were:

1.  Fall protection, construction (29 CFR 1926.501)

2.  Hazard communication standard, general industry (29 CFR 1910.1200)

3.  Scaffolding, general requirements, construction (29 CFR 1926.451)

4.  Respiratory protection, general industry (29 CFR 1910.134)

5.  Electrical, wiring methods, components and equipment, general industry (29 CFR 1910.305)

6.  Powered industrial trucks, general industry (29 CFR 1910.178)

7.  Ladders, construction (29 CFR 1926.1053)

8.  Control of hazardous energy (lockout/tagout), general industry (29 CFR 1910.147)

9.  Electrical systems design, general requirements, general industry (29 CFR 1910.303)

10. Machinery and machine guarding, general requirements (29 CFR 1910.212)

This group of standards is particularly significant in that all ten are associated with managing hazards that present high risks of death, hospitalizations, and/or amputations. For example, nearly 37 percent of all construction-related deaths resulted from a fall from heights, whether from a ladder, scaffold, or other equipment. An additional 10.3 percent of the construction deaths were caused by falling objects, while electrocutions comprised another 8.9 percent. Approximately 50 percent of all amputations occurred in the manufacturing sector, with the remainder distributed across construction, wholesale and resale trade, the service sector, and other industry groups. Regardless of industry, however, the overwhelming number of amputations stem from portable and stationary machinery, implicating deficiencies in the application of lockout/tagout and machine guarding standards.

Individual in-patient hospitalization data was not previously tracked by OSHA, except in a handful of states operating their own safety and health programs. But after evaluating historical data from these states and estimates developed from worker-compensation and hospitalization data supplied by other agencies and groups, OSHA estimates that there are some 210,000 work-related in-patient hospitalizations per year. While OSHA recognizes this estimate may be on the high end of the spectrum, there can be no doubt that the number of individual in-patient hospitalizations is sizable and that workplace incidents that cause in-patient hospitalizations and amputations are going to have greater import to employers and will influence OSHA enforcement practices beginning in 2015.

On September 11, 2014, OSHA adopted a final rule that significantly broadens the mandatory reporting requirements, resulting in an amended Section 1904.39 that becomes effective on January 1, 2015. The amended regulation will require employers not only to report deaths within eight hours as before; it also mandates that employers report to their local OSHA office, subject to limited exceptions, all in-patient hospitalizations of an employee, all amputations, and all eye loss incidents within 24 hours of the event. And, of course, these events must also be recorded on the employer’s OSHA 300 log.

For purposes of applying these criteria, OSHA defines in-patient hospitalization as “a formal admission to the in-patient service of a hospital or clinic for care or treatment.” In-patient hospitalization that involves “only observation or diagnostic testing” need not be reported. The new regulation defines an “amputation” as:

the traumatic loss of a limb or other external body part. Amputations include a part, such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially); fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached. Amputations do not include avulsions, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth.

Because of the anticipated avalanche of mandatory reports OSHA expects to receive under the greatly expanded regulation, local Area Offices will necessarily need to exercise greater discretion in deciding which incidents and employers warrant an inspection. OSHA’s own rule-making recognizes that it simply does not have the resources to pursue every one of them. This means the decision will likely depend on the facts and circumstances underlying the incident as reported to OSHA, as well as the employer’s prior OSHA inspection history. Employers with OSHA histories that contain high-hazard violations or violations of a type that could have contributed to the reported incident should be especially wary of an ensuing inspection.

Construction employers in New York should be particularly concerned with these changes in reportable cases involving falls from elevated heights or where the adequacy of fall-related safety devices are concerned, especially where New York Labor Law §§ 240, 241, and 200 could serve as a basis for triggering a personal-injury suit and in multi-employer construction worksites. Similarly, manufacturing and construction employers need to be concerned about cases involving amputations, eye losses, and fall-related injuries that could qualify for the “grave injury” exception to New York Workers Compensation Law § 11, thereby allowing the employer to be sued for contribution or indemnification by a different prime defendant, such as another contractor, project owner, or equipment manufacturer.

An employer’s compliance with OSHA’s mandatory reporting requirements may result in an employer issuing rushed and ill-considered statements, creating incorrect or incomplete accident reports and other documents, or failing to conduct a proper and independent investigation, any of which could adversely affect the employer in both an OSHA inspection and in the hands of a skilled personal-injury plaintiffs’ lawyer. Any OSHA inspection that stems from a reported incident will likely also result in the creation or collection of additional evidentiary-type material by the employer and/or third parties that may be adverse to the employer’s interests should litigation arise, not to mention any resultant OSHA citations. While there may be questions of access to and admissibility of the actual information created by OSHA, injured employees often obtain access to some of the critical elements of OSHA’s investigative file through routine Freedom of Information Act requests, around which their attorneys can build or enhance the liability suit through the litigation discovery process. For these and many other reasons, employers are well-advised to contact their OSHA attorney immediately for advice upon the occurance of a reportable incident under this revised OSHA regulation. Failure of an employer to engage in immediate efforts to manage the situation in the hours following the incident could broaden the employer’s exposure on multiple fronts, leading to long-term, deleterious financial, regulatory, and liability consequences.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Hodgson Russ LLP | Attorney Advertising

Written by:

Hodgson Russ LLP
Contact
more
less

Hodgson Russ LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.