OSHA’s Fatality, Hospitalization & Amputation Reporting Rule: Lessons Learned [Webinar Recording]

On November 14, 2017, Eric J. Conn and Lindsay A. DiSalvo of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding “OSHA’s Fatality, Hospitalization & Amputation Reporting Rule.

In former President Obama’s second term, his Administration rolled-out a major change to OSHA’s Fatality & Significant Injury Reporting Rule.  Not to be confused with the new Electronic Recordkeeping Rule (which requires certain employers to submit injury and illness data to OSHA on annual basis), this amended rule required all employers to make prompt phone calls to OSHA when work related fatalities or covered in-patient hospitalizations and amputations occur.

The rule has resulted in thousands more reports of incidents to OSHA than before.  Now, three years into the new reporting scheme, we have learned a lot of lessons about what is being reported to OSHA, what non-mandatory reports are often made, and what OSHA is doing with all the new reported incidents.

During this webinar, participants learned:

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Reporting In-Patient Hospitalizations to OSHA: Common Misunderstandings and Mistakes

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