Reportable Hospitalization

10 Reasons Why It Is Critical For Employers To Get OSHA Injury and Illness Recordkeeping and Reporting Right — And How to Ensure It is Done Right

Eric J. Conn 1 Comment

By Eric J. Conn and Lindsay A. DiSalvo

Although OSHA injury and illness recordkeeping and reporting has always been important from an OSHA compliance perspective, making correct recording and reporting decisions (i.e., not over- or under- recording or reporting) has never been more vital than it is today. We are at a moment in OSHA’s history when the agency is clearly staffing up and ramping up inspections and enforcement generally, and with respect to injury and illness recordkeeping specifically, OSHA is on the precipice of issuing a significant expansion of the injury and illness data required to be submitted to OSHA each year.  Indeed, OSHA sent the final Electronic Recordkeeping Rule to OMB for final review, which is the last step in the rulemaking process before the rule is published.

OSHA developed and repeatedly touted its injury and illness recordkeeping program as a “no fault” system, requiring certain injuries and illnesses to be recorded (or proactively reported to OSHA), regardless whether the employer or its safety program could have prevented the injury. In practice, however, recordkeeping data has become another tool OSHA uses to justify enforcement efforts and actions against specific employers or their industries. From publicizing recordkeeping data to “shame” employers, or using the data to target enforcement resources, OSHA has made it essential for employers not to over-record cases; i.e., they must carefully scrutinize each potential recordable injury or illness, rather than erring on the side of recording every close call. Of course, there are also real and growing enforcement risks for under-recording; i.e., failing to record or report cases that should have been recorded or reported.

Accordingly, it is more important than ever before to make sure your organization fully understands the nuances of OSHA’s recordkeeping and reporting requirements.

Here is our take on the Top 10 reasons it is critical for employers to get OSHA injury and illness recordkeeping and reporting right (not recording or reporting more cases than necessary, and not failing to record or report cases that should be):

1.  OSHA’s Electronic Recordkeeping, which puts previously internal data now in OSHA’s hands and on its public website, is about to expanded significantly.

As a result of OSHA’s E-Recordkeeping rule, employers’ injury and illness data is now published on OSHA’s public website.  Unfortunately, because OSHA’s injury and illness recordkeeping program was designed to Continue reading →

BREAKING: Cal/OSHA Overhauls Reporting Requirements for Serious Injuries

Megan Shaked 5 Comments

By Andrew Sommer and Megan Shaked

The California Division of Occupational Safety and Health (Cal/OSHA) just announced major changes to the definition of “serious injury or illness” for purposes of California employers’ duty to report certain serious workplace injuries to Cal/OSHA.  Pursuant to Cal. Labor Code Sec. 6409.1(b), in every case involving a work related death or a serious injury or illness, the employer must “immediately” make a report to Cal/OSHA.  Employers may be cited and subject to penalties for failure to make such reports, and reporting such incidents almost always leads to a site inspection by Cal/OSHA, which in turn most often results in Serious or Serious Accident-Related citations.

Cal/OSHA’s prior, longstanding reporting rule defined “serious injury or illness” as any injury or illness occurring in a place of employment or in connection with any employment that requires in-patient hospitalization for a period in excess of 24 hours for treatment other than medical observation, or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement.  The old definition excluded injuries or deaths caused by the commission of a Penal Code violation (e.g., an intentional assault and battery), or an auto accident on a public street or highway.

On August 30, 2019, California passed Assembly Bill (AB) 1805 to revise the definition of a “serious injury or illness” for reporting purposes. The changes appear to be designed to bring Cal/OSHA’s reporting requirement more (but not entirely) in line with fed OSHA’s hospitalization and amputation reporting rule.  Specifically, Cal/OSHA’s new reporting requirements: Continue reading →

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

Eric J. Conn 6 Comments

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 approximately 75% of the time it conducts an inspection (with an even higher percentage for incident-related 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.

What Is an “In-Patient Hospitalization”? Continue reading →