Many employers are up in arms about the recent revisions to OSHA’s “Recording and Reporting Occupational Injuries and Illnesses” rule (29 CFR 1904). The revisions to Part 1904 require some employers to report injury and illness data electronically, which will also be posted publicly on OSHA’s website. Other changes include (1) a revised list of partially exempt “low-risk” industries, (2) new requirements for reporting certain serious injuries and illnesses; (3) provisions that encourage workers to report work-related injuries and illnesses to their employers, and (4) provisions that prohibit employers from retaliating against workers for reporting injuries and illnesses. OSHA’s interpretation of these anti-retaliation provisions set restrictions on safety incentive programs, drug and alcohol testing protocols, as well as incident reporting and disciplinary policies. OSHA has also stepped up enforcement of Part 1904 with more inspections, citations, and higher fines for non-compliance. In a series of posts, I will explain the basic requirements of this regulation, as well as OSHA’s reasoning and purpose behind the revisions and new requirements.
Who must comply with OSHA’s “Recording and Reporting Occupational Injuries and Illnesses” rule?
All employers covered by the Occupational Safety & Health Act (OSH Act) are covered by Part 1904, and therefore must comply with all applicable requirements. Most employers are not required to keep OSHA injury and illness records, but ALL employers are required to report certain serious incidents to OSHA within a set timeframe.
The Occupational Safety and Health Act of 1970 (OSH Act) is administered by the Occupational Safety and Health Administration (OSHA). The OSH Act covers most private sector employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and other U.S. territories. Coverage is provided either directly by the Federal OSHA or by an OSHA-approved state safety and health plan. The OSH Act (and Part 1904) does not cover:
- Self-employed persons;
- Farms which employ only immediate members of the farmer’s family;
- Working conditions for which other Federal agencies, operating under the authority of other Federal laws, regulate workersafety. This category includes most working conditions in mining, nuclear energy and nuclear weapons manufacture, and many aspects of the transportation industries; and
- Employees of state and local governments, unless they are in one of the states operating an OSHA-approved state plan.
What are the basic elements of Part 1904?
OSHA’s “Recording and Reporting Occupational Injuries
and Illnesses” regulation (29 CFR 1904) consists of five basic elements:
- Severe Incident Reporting Requirements;
- Recordkeeping Forms & Requirements;
- Employee Involvement;
- Anti-Retaliation Provisions; and
- Electronic Data Submission Requirements.
In this post, I will discuss the first two elements of Part 1904.
Stay tuned for Part 2 of the series titled, Compliance with OSHA’s Recording & Reporting Occupational Injuries & Illnesses Rule – 29 CFR 1904, for information on the remaining elements.
What is a reportable incident? What are OSHA’s reporting requirements?
As of January 1, 2015, ALL employers are required to report work-related incidents resulting in a fatality within 8 hours; and incidents resulting in amputation, loss of an eye, and/or in-patient hospitalization within 24 hours. Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA. Furthermore, an in-patient hospitalization, amputation or loss of an eye must be reported to OSHA only if they occur within 24 hours of the work-related incident. Amputations do not include avulsi
ons, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth. Reportable incidents are reported to OSHA via one of the following methods:
- Calling OSHA’s free and confidential number at 1-800-321-OSHA (6742);
- Calling your closest Area Office during normal business hours; or
- Using the new online form.
The information required when filing a report includes:
- Establishment name
- Location of the incident
- Time of the incident
- Type of reportable event
- Number of employees injured / deceased
- Names of injured / deceased
- Your contact person and phone number
- Description of incident
NOTE: If the area office is closed, you may not report these incidents to OSHA by leaving a message on the Area Office’s answering machine, faxing the Area Office, or sending an email. Instead, you must use OSHA’s free 800 number or the online form when your Area Office is closed.
What happens if I don’t comply with OSHA’s reporting requirements?
In November 2015, Congress enacted legislation requiring federal agencies to adjust their civil penalties to account for inflation. The Department of Labor is adjusting penalties for its agencies, including the Occupational Safety and Health Administr
ation (OSHA). OSHA’s maximum penalties, which were last adjusted in 1990, increased by 78% in August 2016 and another 1.6% in January 2017. Going forward, the Department of Labor will continue to adjust OSHA penalties for inflation each year based on the Consumer Price Index. Therefore, the cost of non-compliance will continue to rise.
Failing to notify OSHA of a reportable incident as required can result in an other-than-serious citation. If OSHA learns that an employer knew about the requirement but chose not to report it, a willful citation will likely be issued.
Who must comply with OSHA’s Recordkeeping Requirements?
Employers who had 11 or more employees at anytime during the previous calendar year are required to comply with all of OSHA’s recordkeeping requirements. Employers who had 10 or fewer employees during the previous calendar year and those classified as “low-risk” by OSHA are partially exempt from Part 1904. “Low-risk” industries are those classified in one of the North American Industry Classification System (NAICS) codes on OSHA’s list. However, partially exempted establish
ments can be required to keep these records if they are asked to do so in writing by OSHA, the Bureau of Labor Statistics (BLS), or a state agency operating under the authority of OSHA (e.g. states with OSHA approved plans, such as CalOSHA).
What does “partially exempt” mean?
Partially exempt employers are excused from OSHA’s recordkeeping requirements, but must still comply with severe incident reporting requirements. In other words, ALL employers, including those partially exempted by company size or industry classification from OSHA’s recordkeeping requirements, are still required to report to OSHA reportable incidents within prescribed time periods (as per 29 CFR 1904.39).
What exactly are OSHA’s recordkeeping forms and requirements?
Essentially, the term “OSHA injury and illness records” is used when referring to the following OSHA forms:
Form 300 – Log of Work-Related Injuries & Illnesses;
- Form 300A – Summary of Work-Related Injuries & Illnesses; and
- Form 301 – Injuries & Illnesses Incident Report.
You may download OSHA forms and instructions here. Covered employers are required to keep these forms for the current year, as well as maintain records of these forms for the previous 5 years. Form 301 is completed for each recordable workplace injury or illness. Form 300 is revised each time a recordable incident occurs. Companies with multiple job sites should keep a separate log (Form 300) for each location that is expected to operate for at least a year. Form 300A is completed annually and posted in a conspicuous area where notices to employees are customarily placed from February 1st to April 30th of the year following the year covered by the form. For example, if Form 300A reflects the company’s 2016 incidents then it must be posted from February 1, 2017 to April 30, 2017. Employers must also ensure that Form 300A is not altered, defaced, or obscured during the required posting period. The 300A form must be certified by a company executive, which is defined as an owner of the company, an officer of the corporation, the highest-ranking company official working at the site, and the immediate supervisor of the highest-ranking company official working at the site.
29 CFR 1904.35 provides employees, former employees, their personal representatives (e.g. lawyer), and authorized employee representatives (e.g. unions) with the right to access OSHA injury and illness records, with some limitations. Employers are prohibited from charging a fee for the first set of OSHA records, but are allowed to assess a reasonable charge for retrieving and copying records for any subsequent requests.
When an authorized government representative requests your OSHA injury and illness records, you must provide copies of the records within four (4) business hours. An authorized government representative is:
- a representative of the Secretary of Labor conducting an inspection or investigation under the OSH Act (e.g. OSHA Inspector);
- a representative of the Secretary of Health and Human Services (including the National Institute for Occupational Safety and Health-NIOS
H) conducting an investigation under section 20(b) of the OSH Act; and/or
- a representative of a State agency responsible for administering a State plan approved under section 18 of the OSH Act (e.g. CalOSHA Inspector).
What is a recordable incident?
A recordable incident is one that employers are required to record on their OSHA forms, which includes each work-related incident resulting in a fatality, injury, and/or illness occurring to a covered employee that meets one or more of the general recording criteria of 1904.7 or the specific cases provided in 1904.8 through 1904.12. When determining if a case is recordable, I always start by first determining if the injured or ill individual is a covered employee, then if the case is work-related, then if it is a new case, and finally if it meets the general recording or specific case criteria (reference image below).
Covered employees are all employees on the company’s payroll or supervised by the company on a day-to-day basis, regardless of whether they are labor, executive, hourly, salary, part-time, seasonal, or migrant workers. Ergo, employees provided by a temp agency or other third party, who are not on your payroll, but supervised by you on a day-to-day basis are considered covered employees; and if they were to sustain a recordable injury or illness, it would have to be recorded on your OSHA forms and reported to OSHA within the set timeframe (if applicable). If your business is organized as a sole proprietorship or partnership, the owner or partners are not considered employees for recordkeeping purposes.
Stay tuned for Part 2 of our series titled, “Compliance with OSHA’s Recordkeeping Rule” to find out more about the new revisions!!
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