By: Mark A. Lies II and Kerry M. Mohan

On Tuesday we wrote about OSHA’s September 11, 2014, announcement of its Final Rules that revised current recordkeeping standards.  Today, we provide you more information regarding what the changes to those rules will mean.

Increased Reporting Of Injuries And Incidents Will Lead To Increased OSHA Inspections

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.” 29 C.F.R. § 1904.39(a). This requirement applies to all employers, regardless if they have 10 or fewer employees and regardless of if they are exempt from maintaining recordkeeping logs.

Under the new standard, all employers are required to report to OSHA:

• Within eight (8) hours after the death of any employee as a result of a work-related incident;” and
• Within twenty-four (24) hours after the in-patient hospitalization of one or more employees or an employee’s amputation or an employee’s loss of an eye, as a result of a work-related incident.”

20 C.F.R. § 1904.39(a) as amended.

OSHA’s new reporting rule raises several questions as to what it even means. For instance, what constitutes an amputation? Under the new rule, an amputation does not require bone loss. Thus, does the cutting-off of the very tip of a finger, no matter how small, constitute an amputation? Also, what constitutes the loss of an eye? Does it require an immediate incident resulting in the loss of an eye? The fact that these questions exist means that OSHA may have a different interpretation of the rule than the employer, which could result in a citation.

Moreover, the new standard’s implications are significant. As you may expect, the reporting of a death or serious injury often leads to an OSHA inspection, which brings its own set of issues. Thus, by requiring employers to now report more injuries and illnesses, the number of OSHA inspections, and citations issued as a result, will certainly increase.

Multi-Employer Worksites

As this rule unfolds, it will have implications relating to OSHA’s “multi-employer” worksite doctrine which is applicable when there are multiple employers engaged in performing work at the same worksite.

Section 5(a) of the Occupational Safety and Health Act broadly requires employers to furnish each of its employees a workplace free from recognized hazards and to comply with all occupational safety and health standards developed by OSHA. Thus, the Act creates two types of obligations: 1) a “general duty” obligation running only to the employer’s own employees; and 2) an obligation to obey all OSHA standards with respect to all employees, regardless of their employer.

This second obligation formed the basis for OSHA’s “multi-employer worksite policy,” under which the Agency decided it had the authority to issue citations not only to employers who exposed their own employees to hazardous conditions, but also to employers who created a hazardous condition that endangered employees, whether its own or those of another employer.  This policy gave OSHA the ability to issue citations to multiple employers even for violations that did not directly affect the employer’s own employees. This policy had particular import in the construction industry, with many different employers having employees at a site at any given time.

Since the early 1980s, OSHA has continuously expanded the scope of its multi-employer worksite policy. Under OSHA’s current enforcement policy, compliance officers are instructed 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 a hazardous condition through the exercise of reasonable supervisory authority.

This fourth category, the “controlling employer,” has historically caused the most consternation among employers as well as courts.  The new OSHA enforcement policy regarding reporting of injuries or illness and monitoring the OSHA 300 Log and related documents will raise numerous issues, for example:

• Does the controlling employer at the worksite have OSHA liability if another employer, such as a subcontractor or a temporary staffing service, at the worksite fails to report an injury or illness involving the subcontractor’s or temporary staffing service’s employee to OSHA within the required time period?
• What obligation does the controlling employer have to inquire with other employers to determine whether a subcontractor or temporary staffing service had a reportable or recordable injury or illness and whether the subcontractor or temporary staffing service complied with the rule?
• Who is responsible for maintaining the OSHA 300 Log at the worksite since OSHA has specific rules regarding which employer(s) is/are required to maintain the Log if there are multiple employers at the worksite?

Inspection Preparation

As many employers have learned who have been inspected by OSHA, there are respective rights of the employer, employees and OSHA during an OSHA inspection.  Unfortunately, most employers are unaware of these respective rights, as well as their employees, and, therefore, may waive important rights regarding the scope of the inspection, what documents the agency is and is not entitled to and how to respond to requests for employee interviews. Since there will be many more inspections generated, it is critical in the next several months that employers train their supervisors and make employees aware of these rights.

Training Of The OSHA Record Keeper

Because many thousands of new employers will now be responsible for maintaining the OSHA 300 Log, the training process must begin now so that the record-keepers can begin to properly document recordable injuries and illnesses on the Log, as of January 1, 2015. The record-keeper will need to learn the various categories of recordable injuries and illnesses, how to evaluate medical records to determine whether an incident is recordable and then become aware of how to insert the data into the correct categories in the Log. The learning curve will be steep since the Log must be completed for each recordable incident within seven (7) calendar days of the employer becoming aware that there has been a recordable injury or illness.

Recommendations

In order to be prepared to meet these new compliance obligations, employers should consider the following:

• determine whether the employer is now subject to the requirement to maintain the OSHA 300 Log, and if so, designate and train an employee who will be competent to perform this responsibility
• conduct training for its record-keeper or other responsible employee regarding the new requirements to report the expanded categories of reportable severe injuries and illnesses within twenty-four (24) hours to OSHA
• because there will be many more OSHA inspections due to the new reportable categories of severe injuries and illnesses, conduct training on the various rights and responsibilities of employers, employees and OSHA during an OSHA inspection so that these rights can be properly exercised to limit the scope of potential employer liability.

For more information, please contact the authors, a member of the Seyfarth’s Environmental Safety and Toxic Torts Team, or your Seyfarth attorney.