OSHA s Revised Final Regulations: Must Hawaii Employers Comply?

Transcription

1 October 6, 2014 OSHA s Revised Final Regulations: Must Hawaii Employers Comply? On September 18, 2014, the Occupational Safety and Health Administration (OSHA) issued final rules amending recording and reporting requirements. See 79 Fed. Reg These new rules, which take effect January 1, 2015, revises: (1) the classification system OSHA uses to identify which employers are exempt from recording injuries; (2) which work-related injuries must be reported to OSHA; and (3) how long an employer has to file a report of a fatality, in-patient hospitalization, amputation, or loss of an eye to OSHA. This article identifies OSHA s rule changes and explains the impact on Hawaii employers. Although the Hawaii State Plan previously adopted most OSHA standards, differences existed, and still continue to exist, between the federal and state requirements. 1 Until the Hawaii Occupational Safety and Health Division (HIOSH) HIOSH revises Hawaii regulations, Hawaii employers should continue to record and report injuries to HIOSH. 2 OSHA s rule revisions do not directly impact Hawaii employers. I. Recordkeeping Requirements: Form 300, Form 301, Form 300A A. Background State and federal law requires employers to maintain a record of work-related injuries on three (3) OSHA forms, accessible at the following website: These forms need not be submitted to a government agency, unless requested in writing. OSHA Form 300, Log of Work-Related Injuries and Illnesses. Employers record injuries and illnesses on this form. OSHA Form 301, Injury and Illness Incident Report. Employers record additional details about each injury or illness reported in the Form OSHA Form 300A, Summary of Work-Related Injuries and Illnesses. This is a summary report that must be completed and posted on an annual basis. 1 Federal law only requires HIOSH to have the same requirements as OSHA for recording injuries and illnesses, but not with regard to other requirements such as industry exemptions, reporting of fatalities and hospitalizations, and record retention. See 29 CFR (b)(1), (2). 2 In September, 2014, OSHA ended the Operational Status Agreement with HIOSH and allowed HIOSH resume oversight of the safety and healthy working conditions in Hawaii. OSHA s enforcement authority is now only limited to maritime and federal workplaces. 3 Hawaii s WC-1 Employer s Report of Industrial Industry can be used to meet the injury/illness reporting requirement. OSHA_RecordkeepingArticle_2014Oct06 1

2 Certain employers are exempt from this recordkeeping requirement. Small employers and business establishments in lower hazard industries need not maintain Forms 300, 301, and 300A, unless informed in writing to do so. A small employer is an employer that had 10 or less employees in the prior calendar year. Under OSHA s old rules, business establishments in lower hazard industries were identified by certain Standard Industrial Classification (SIC) codes that have a Lost Workday Injury and Illness (LWDII) rate at or below 75% of the 3-year average national LWDII rate for private industry. For instance, depository institutions (banks & savings institutions), nondepository credit institutions, insurance carriers, insurance agents, and educational services (schools, colleges, universities, and libraries) were industries that were not regularly required to maintain OSHA records. B. OSHA Revision: Partially Exempt Industries Will be Based on NAICS Classification Codes, Instead of SIC Codes Under OSHA s final rules, the partially exempt industries will be based on the North American Industry Classification System (NAICS) sector classification codes. Previously, OSHA exemptions were identified by SIC codes, but the SIC codes are now viewed as outdated and the federal statistical agencies have already transitioned to using the more modernized NAICS classification system. A list of NAICS codes recognized by OSHA as partially exempt is provided in Appendix 1. A list of industries that include establishments that would be newly partially exempt from keeping records is provided in Appendix 2. An employer can determine its NAICS code by visiting the following web page: Alternatively, an employer may contact HIOSH for guidance in determining whether it has an industry exemption. C. Impact on Hawaii Employers Until HIOSH issues revised regulations, Hawaii employers are not impacted by OSHA s decision to classify industry exemptions based on NAICS codes. Hawaii employers should continue to use the SIC codes listed in Haw. Admin. R to determine whether an exemption exists for that establishment s industry. Appendix 3 lists the industries recognized as partially exempt in Hawaii. Thus, hardware stores (SIC 525), Health Services (SIC 80 s) including offices and clinics of medical doctors and dentists, specialty outpatient facilities (drug treatment, mental health centers, etc.) should continue to complete and post the required forms since they are not exempted from recordkeeping requirements under Hawaii law, even though they are exempted under Federal law. II. Reporting Requirements A. Background Although some employers are exempt from recordkeeping requirements, all employers are required to report certain work-related injuries to OSHA (or in Hawaii, HIOSH). Under prior OSHA regulations, injuries involving death or in-patient hospitalizations of three (3) or more employees must be reported within eight (8) hours. OSHA_RecordkeepingArticle_2014Oct06 2

3 B. OSHA Revision: ALL Employers Will Be Required to Report All Work-Related Fatalities, In- Patient Hospitalizations, Amputation, or Loss of an Eye OSHA s new rules continue to require employers to report fatalities and in-patient hospitalizations within a certain time period, but extends the reporting requirement to also apply to amputations and loss of an eye. Fatalities: The new rules continue to require employers to report all work-related fatalities within eight (8) hours. However, the regulations clarify that deaths must only be reported if the fatality occurs within thirty (30) days of the work-related incident. See 29 CFR (6). In-Patient Hospitalizations: The revised regulations extend the time period for employers to report in-patient hospitalizations. Instead of eight (8) hours to report workplace injuries arising out of inpatient hospitalizations as provided in the current regulations, employers will have 24 hours to report the incident if the hospitalization occurs within 24 hours of the work-related incident. The report, however, must be made when one employee is hospitalized, as opposed to the prior threeperson threshold under the current rules. For instance, even if one person has a heart attack at work that results in hospitalization, the employer must report the event within 24 hours. In-patient hospitalization is defined as a formal admission to the in-patient service of a hospital or clinic for care or treatment. 29 CFR (9). It does not include hospital visits for observation or diagnostic testing. To qualify as an in-patient hospitalization that triggers a reportable OSHA incident, the hospitalization must involve care or treatment of the patient. See 29 CFR (10). Amputation: The revised rules will require employers to report amputations within 24 hours if the amputation occurs within 24 hours of the work-related incident. Amputation is defined as the traumatic loss of a limb or other external body part. 29 CFR (11). For instance, a limb that has been severed, cut off, or amputated (either completely or partially) or a fingertip that has been amputated with or without bone loss must be reported by the employer. Amputations do not include severed ears or broken/chipped teeth. Loss of Eye: Finally, the revised regulations also extend the 24-hour reporting requirement to include an employee s loss of an eye, if the event occurs within 24 hours of the work-related incident. OSHA s final rules also clarify that an employer s duty to report begins when the covered death, hospitalization, amputation, or loss of an eye is reported to the employer or its agent. See 29 CFR (7). Thus, if the employer does not learn of the reportable event right away, the employer is only going to be held responsible for making a timely report from the time it learns that the injury was work-related. The clock starts upon the employer s or its agent s knowledge of the reportable event. For instance, if an incident results in an employee s death on Monday at 9:00 a.m., but the employer does not have sufficient information to determine whether it is work-related until 11:00 a.m., the employer has until 7:00 p.m. to report the event (i.e., 8 hours from the reportable event). See 79 Fed. Reg. at OSHA_RecordkeepingArticle_2014Oct06 3

4 C. Impact on Hawaii Employers Because HIOSH has not yet adopted OSHA s revised regulations, Hawaii employers need not comply with OSHA s reporting requirement changes. In accordance with Haw. Admin. R , Hawaii employers must report to HIOSH workplace incidents that result in death, hospitalization of three or more employees, or property damage in excess of $25,000. The report must be made within eight (8) hours of the work-related incident. See id. Since Hawaii rules have not been amended like OSHA to require reports of in-patient hospitalizations of just one employee (instead of three (3) employees currently required by Hawaii law), amputation, and loss of an eye, such reports need not be made by Hawaii employers. In fact, reports to HIOSH of these severe injuries that are not mandated by State law will likely trigger a HIOSH investigation. III. Summary Hawaii employers need not comply with OSHA s final rules that take effect January 1, 2015 since Hawaii has its own State plan that has not yet adopted the revised federal regulations. This means that Hawaii employers should continue to: (1) use the SIC codes recognized by HIOSH to determine whether it qualifies for an industry partial exemption from recording injuries and illnesses; and (2) report to HIOSH within eight (8) hours all fatalities, hospitalization of three or more employees, or property damage in excess of $25,000. OSHA_RecordkeepingArticle_2014Oct06 4

5 Appendix 1 OSHA: Partially Exempt Industries OSHA exempts the following industries from keeping injury and illness records for any establishment, unless they are asked in writing to do so by OSHA, the Bureau of Labor Statistics (BLS), or a state agency operating under the authority of OSHA or the BLS. NAICS Code Industry Description 4412 Other Motor Vehicle Dealers 4431 Electronics and Appliance Stores 4461 Health and Personal Care Stores 5241 Insurance Carriers 5242 Agencies, Brokerages, and Other Insurance Related Activities 5251 Insurance and Employee Benefit Funds 5259 Other Investment Pools and Funds 5312 Offices of Real Estate Agents and Brokers 5331 Lessors of Nonfinancial Intangible Assets (except Copyrighted Works) 5331 Lessors of Nonfinancial Intangible Assets (except Copyrighted Works) 5411 Legal Services 5412 Accounting, Tax Preparation, Bookkeeping, and Payroll Services 5413 Architectural, Engineering, and Related Services 5414 Specialized Design Services 5415 Computer Systems Design and Related Services 5416 Management, Scientific, and Technical Consulting Services 5417 Scientific Research and Development Services 5418 Advertising and Related Services 5511 Management of Companies and Enterprises 5611 Office Administrative Services 5614 Business Support Services 5615 Travel Arrangement and Reservation Services 5616 Investigation and Security Services NACIS Code Industry Description 6111 Elementary and Secondary Schools 6112 Junior Colleges 6113 Colleges, Universities, and Professional Schools 6114 Business Schools and Computer and Management Training 6115 Technical and Trade Schools 6116 Other Schools and Instruction 6117 Educational Support Services 6211 Offices of Physicians 6212 Offices of Dentists 6213 Offices of Other Health Practitioners 6214 Outpatient Care Centers 6215 Medical and Diagnostic Laboratories 6244 Child Day Care Services 7114 Agents and Managers for Artists, Athletes, Entertainers, and Other Public Figures 7115 Independent Artists, Writers, and Performers 7213 Rooming and Boarding Houses 7221 Full-Service Restaurants 7222 Limited-Service Eating Places 7224 Drinking Places (Alcoholic Beverages) 8112 Electronic and Precision Equipment Repair and Maintenance 8114 Personal and Household Goods Repair and Maintenance 8121 Personal Care Services 8122 Death Care Services 8131 Religious Organizations 8132 Grantmaking and Giving Services 8133 Social Advocacy Organizations 8134 Civic and Social Organizations 8139 Business, Professional, Labor, Political, and Similar Organizations OSHA_RecordkeepingArticle_2014Oct06 5

6 Appendix 2 OSHA: Industries That Include Establishments that Would be Newly Partially Exempt from Keeping Records NAICS Code NACIS Industry Description 4412 Other Motor Vehicle Dealers 4431 Electronics and Appliance Stores 4461 Health and Personal Care Stores 4471 Gasoline Stations 4511 Sporting Goods, Hobby, and Musical Instrument Stores 4532 Office Supplies, Stationary, and Gift Stores 4812 Nonscheduled Air Transportation 4861 Pipeline Transportation of Crude Oil 4862 Pipeline Transportation of Natural Gas 4869 Other Pipeline Transportation 4879 Scenic and Sightseeing Transportation, Other 4885 Freight Transportation Arrangement 5111 Newspaper, Periodical, Book, and Directory Publishers 5122 Sound Recording Industries 5151 Radio and Television Broadcasting 5172 Wireless Telecommunications Carriers (except Satellite) 5179 Other Telecommunications 5191 Other Information Services 5221 Depository Credit Intermediation 5239 Other Financial Investment Activities 5241 Insurance Carriers 5259 Other Investment Pools and Funds 5413 Architectural, Engineering, and Related Services 5416 Management, Scientific, and Technical Consulting Services 5418 Advertising and Related Services 5511 Management of Companies and Enterprises 5614 Business Support Services 5615 Travel Arrangement and Reservation Services 5616 Management, Scientific, and Technical Consulting Services 5418 Advertising and Relating Services 5511 Management of Companies and Enterprises 5614 Business Support Services 5615 Travel Arrangement and Reservation Services 5616 Investigation and Security Services 6116 Other Schools and Instruction 7213 Rooming and Boarding Houses 8112 Electronic and Precision Equipment Repair and Maintenance 8114 Personal and Household Goods Repair and Maintenance 8122 Death Care Services 8134 Civil and Social Organizations 8139 Business, Professional, Labor, Political, and Similar Organizations OSHA_RecordkeepingArticle_2014Oct06 6

7 Appendix 3 HIOSH: Partially Exempt Industries OSHA_RecordkeepingArticle_2014Oct06 7