1. OSHA Update:  Insight on New Rules and Rule Changes And a “Stealth Rule” expected to be effective in August, 2015
Adams and Reese LLP

2. Reporting and Recording Rules changed effective January 1, 2015

3. Why is critical to know the law relative to recordkeeping?
17(g) Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Act shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both.

4. OLD Reporting Rules Required:
Employer to report a fatality of employee(s) or hospitalization of three or more employees within eight (8) hours.
Reporting in-person or by calling OSHA’s “800-number.”

5. New Reporting Rules require:
Employer must report within 8 hours the death of an employee (subject to certain limited exceptions)
Employer must report the hospitalization for more than observation of 1 or more employees within 24 hours (subject to certain limited exceptions).
Employer must report amputations or eye losses within 24 hours.

6. Impact of New Reporting Rules:
Far more incidents are being reported to OSHA.
Employers are reporting incidents they don’t have to.
OSHA is targeting high-frequency industries.
Rules and definitions create ambiguity about the definition of amputation and eye loss.

7. Definition of amputation:
An amputation is defined 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; and amputations of body parts that have since been reattached.

8. Definition of amputation (cont’d):
Does not include:
Avulsions (tearing away of a body part);
Enculeations (removal of an eye);
Deglovings (removal of skin);
Scalpings;
Severed ears; and
Broken or chipped teeth.
OSHA is encouraging employers to rely on the medical providers to define whether it is an amputation.

9. Definition of Loss of Eye
Includes enucleation (removal of the entire eye).
Includes subsequent surgical removal of the eye, if the work-related incident itself did not cause the removal of the eye.
Does not include loss of vision (even complete loss of vision).

10. Old Recordkeeping Rules:
Employers with ten (10) or fewer employees were (and still are) exempted.
Employers with Standard Industrial Classification (SIC) that have a DART (Days Away, Restriction, or Transfer rate) of were exempted.
Employers required to keep records were (and are) required to maintain them in paper and post them from February 1, through April 30, every year.

11. Recordkeeping Rules effective 1/1/15:
Employers with ten (10) or fewer employees are still exempted.
Employers with NAICS codes that have a DART of 1.5 are exempted (thousands of employers who never compiled injury and illness data now will have to).
Employers will submit records electronically.

12. Impact of new recordkeeping rules:
Thousands of workplaces that didn’t have to keep records now will.
Records will be available online in searchable format.
The maintenance of records in electronic format will permit OSHA to target employers who experience certain types of illnesses and injuries.

13. Stealth Changes within a Second Set of Electronic Reporting Rules

14. OSHA has proposed another recordkeeping rule that would require employers with more than 250 employees to report serious injury and illness data quarterly.
Tucked into this proposed rule, which is also expected to go into effect in August will be new Whistleblower protections.

15. Section 11(C) of the Occupational Health and Safety Act is the so-called Whistleblower section of the Act that protects employees who report a safety concern.
Traditionally, whistleblowers were those employees who reported an unsafe working condition, be it to the employer, OSHA, or some other entity.

16. Under this proposal, an employee reporting a job-related illness or injury would be considered a Section 11(C) Whistleblower.
This proposal, which is almost certain to go into effect, will also prohibit a number of very common work practices.

17. Prohibited Actions will include:
Mandatory drug testing every time an employee reports an injury (unless there is a reason to suspect drug use).
Demanding that employees report illnesses and injuries within a certain time after being injured or becoming ill.
Requiring employees report injuries and illnesses in-person to someone at a distant location.

18. Prohibited Actions will include:
Terminating employees who are injured because they failed to abide by the employer’s safety rules.
Disciplining employees who report injuries or illnesses or terminating employees who have more than X injuries.
Enforcing vague safety rules like “situational awareness” and “work carefully” only after an employee is injured.
“Repeat Offender” programs.

19. Impact of these changes:
Violations of Section 11(C) involve much bigger penalties, back pay, removal of negative comments in employment files, and reinstatement, among others.
Employers will have to develop new management styles and strategies to reduce and eliminate on-the-job injuries.
Contractual language that is common now (mandatory drug testing) will need revision.

20. Questions?