By Eric J. Conn and Lindsay A. DiSalvo
The regulatory requirement at 29 C.F.R. 1904.39, OSHA’s Fatality and Serious Injury Reporting Rule, which requires employers to report to OSHA certain in-patient hospitalizations, may seem straightforward, but there are several nuances employers routinely miss that affect the determination whether a hospitalization is actually reportable to OSHA.
Although failing to timely report a reportable hospitalization can be cited, and could set up an employer for costly Repeat violations, over-reporting has its own significant consequences. Reporting hospitalizations very often triggers an on-site enforcement inspection, and OSHA issues a citation at least 75% of the time it conducts an inspection (an even higher percentage for incident inspections). Moreover, at least 85% of OSHA citations are characterized as Serious, Repeat or Willful, and OSHA’s civil penalty authority has skyrocketed by 80% in the past two years. Accordingly, it is critical that employers understand the intricacies of what makes an employee’s visit to the hospital a reportable event, and conversely, what does not, so as to avoid unnecessary and costly reports to OSHA.
As we outlined in a prior article discussing OSHA’s updated Fatality and Serious Injury Reporting Rule, under the current reporting requirements, employers must:
“within 24 hours after the in-patient hospitalization of one or more employees [that occurs within 24 hours of the work-related incident] . . . report the in-patient hospitalization . . . to OSHA.”
This is a significant change from the prior reporting rule, which required a report to OSHA only if three or more employees were hospitalized overnight. It was extraordinarily rare that a single workplace incident resulted in the overnight hospitalization of three or more workers, and so the instances of reporting under that rule were infrequent. The new rule, however, requires a report to OSHA for the hospitalization of a single employee, which has opened the door to thousands more incidents that must be evaluated for possible reporting.
Although the current regulation has increased the number of employee hospitalizations that are being reported to OSHA, many of those incidents reported to OSHA did not actually meet the criteria for reporting, based on a very particular definition of hospitalization and a limited time period for when the hospitalization must occur. In other words, many incidents are being reported to OSHA (effectively inviting OSHA to conduct a site enforcement inspection) that should not have been reported at all. Continue reading