OSHA Posts a Proposed Revision to the Injury and Illness Recordkeeping Rule

Below is a link for the federal register notice posted by OSHA – a proposed revision to the injury and illness recordkeeping rule that includes a NAICS update (supplanting the use of SIC). By doing so, it changes the mix of industries that will now be covered by the recordkeeping rule (some new industries like retail bakeries would now be required to record injuries/illnesses while other industries that currently must keep records, like newspaper publishers, would now be excluded).

The proposal would also lower the requirements for reporting certain events to OSHA within 8 hours – from the current three employees to one employee experiencing an in-patient hospitalization (proposal retains the current requirement to report any work-related fatality to OSHA within 8 hours). A new proposal to require reporting to OSHA of all work-related amputations within 24 hours is also included in the notice.

Federal Register – Up-dated Proposed Rule 06/22/2011:  http://www.gpo.gov/fdsys/pkg/FR-2011-06-22/pdf/2011-15277.pdf

Comments on the proposed rule are due September 20, 2011.  All submissions should be identified by docket number OSHA-2010-0019, to make a comment click here:  http://www.regulations.gov.

Below is an article by the BNA’s Daily Labor Reporter on this issue.

BNA’s Daily Labor Reporter – OSHA Proposes to Rewrite List of Businesses That Must Report Workplace Injuries and Illness

New and used car dealerships, hardware stores, residential property management firms, museums, pet supply stores, retail bakeries, and 52 other types of industries would be required for the first time to record workplace injuries and illnesses, under a proposed rule issued by the Labor Department’s Occupational Safety and Health Administration and scheduled for publication in the June 22 Federal Register.

The proposal would, at the same time, relieve 72 other sectors, including corporate offices, cellular phone operators, newspaper publishers, and travel agencies, from having to record their injuries and illnesses.

The changes, which affect Appendix A to Subpart B of OSHA’s recordkeeping rule (29 C.F.R. 1904), are being made as a result of a migration from the Standard Industrial Classification (SIC) system to the newer North American Industry Classification System (NAICS), OSHA said. The agency began moving to NAICS in 2003 for some of its data sets, but still uses SIC codes in the list of partially exempted industries. OSHA said it first raised the issue of converting its exempted employers list from SIC to NAICS codes in 2001. 

In total, the proposal would add 198,763 establishments encompassing 5.3 million workers to the list, OSHA said. It also would remove 119,374 establishments, affecting 4 million workers, from the list.

Under the proposed rule, OSHA also would use Days Away, Restrictions, and Transfer (DART) rates compiled by the Bureau of Labor Statistics for 2007, 2008, and 2009 as a basis for determining which industry sectors qualify for the list, the agency said.

While certain businesses may be exempted from the reporting requirements, BLS still can seek to collect data from them through its Survey of Occupational Injuries and Illnesses, OSHA said. Employers with 10 or fewer employees would continue to be exempt from OSHA’s recordkeeping requirements, the agency said.

Reporting Window to Be Narrowed 

The proposed rule also would lower the threshold for when the agency must be notified about hospitalizations to one worker hospitalized from five previously. According to OSHA, the new requirement would ensure that the agency “will be informed about many more of these serious occurrences.”

The proposal also would establish a new reporting requirement for work-related amputations, with a 24-hour time limit.

Adam Finkel, executive director of the University of Pennsylvania Law School’s Program on Regulation, praised the proposal June 21. “It’s going to really increase the knowledge base for the agency,” Finkel said of the new threshold for hospitalizations. “They’ll be able to know what’s going on during the year.”

On the new amputations requirement, Finkel said, “[t]hat’s in the category of pretty severe things that can happen to you. If you lose a finger, you might be able to get patched up and sent home without being an inpatient, but it’s a serious event.”

Finkel, a former OSHA health standards director, criticized the proposal for not including a greater health focus. “It’s one more safety-oriented recordkeeping improvement,” Finkel said. “What about people who get hospitalized because of some disease which is clearly work-related? We’re not taking any opportunity to even ask questions about whether there might be some way to do that.”

Long Overdue for Performing Arts

Monona Russell, a safety officer with the International Alliance of Theatrical Stage Employees, hailed the proposed addition of theater companies, dinner theaters, dance companies, and other performing arts companies to the list of employers that must keep records. “It’s long overdue,” Russell said June 21. “We’re killing off workers. People fall off the edge of the stage, fall from the rigging, get crushed by pieces of scenery.”

Moreover, Russell said, stage employees generally are unwilling to report their own injuries and illnesses“because there’s 100 people standing in line for their job. They won’t get hired for their next gig. So they have no protections, and there’s no whistleblower [protection] that’s going to work.”

OSHA said the proposed rule is expected to impose net costs of $8.5 million, and between $50 and $100 per establishment. As a result, the proposal is not a significant regulation and thus is not subject to Office of Management and Budget review.

Comments should be submitted to the OSHA Docket Office, U.S. Department of Labor, Room N-2625, 200 Constitution Ave. N.W., Washington, D.C., 20210, by fax to (202) 693-1648, or online at http://www.regulations.gov. All submissions should be identified by docket number OSHA-2010-0019.

By Stephen Lee