New OSHA Reporting Requirements Take Effect Jan. 1, 2015

By Roy Maurer December 18, 2014

The Occupational Safety and Health Administration’s (OSHA) updated injury and illness recordkeeping and reporting requirements go into effect Jan. 1, 2015. In addition to new requirements on what must be reported, employers in dozens of industries will be required to maintain OSHA 300 logs for the first time, while others previously covered will be exempt.

“The reporting changes will no doubt lead to thousands more incident inspections by OSHA,” said Eric Conn, founding partner and chair of the OSHA Workplace Safety Group at the law firm Conn Maciel Carey, based in Washington, D.C. “On top of that, OSHA plans to publish these reports of injuries on OSHA’s public website.”

Reporting Changes

Employers are currently required to report all work-related fatalities and inpatient hospitalizations of three or more employees within eight hours of the event. Beginning in January 2015, employers will still report all fatalities to OSHA within eight hours but will also have to report each work-related inpatient hospitalization, as well as amputations and losses of an eye, to OSHA within 24 hours. The reporting regulations affect all employers covered by OSHA, even those who are partially exempt from maintaining injury and illness records.

“This is eight hours and 24 hours from when you learn about fatalities or injuries, not from when the injury occurred,” noted Conn.

The changes go into effect in January for workplaces under federal OSHA jurisdiction. Employers located in states that operate their own safety and health programs should check with their state plan for the implementation date of the new requirements.

“Hospitalizations and amputations are sentinel events, indicating that serious hazards are likely to be present at a workplace and that an intervention is warranted to protect the other workers at the establishment,” said David Michaels, assistant labor secretary for occupational safety and health, at a press conference in September 2014. “Too often, after a fatality, when we inspect, we learn that other workers have already been injured at that establishment.”

Michaels said that upon receiving reports of serious injuries, “we will begin a conversation, and in some cases we won’t need anything else. We are not going to send an inspector to respond to every one of these. But, we will engage with the employers whose workers have been hurt. Right now, we are developing a process to determine which incidents to inspect and which to handle using other types of investigations and interventions.”

Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA. Inpatient hospitalizations, amputations or loss of an eye must be reported to OSHA only if they occur within 24 hours of the incident.

During the rule’s notice-and-comment period in 2011, many employers objected to OSHA’s proposal to lower the reporting threshold on hospitalizations, asserting that an employee’s hospitalization does not always represent a serious injury or illness, and may occur due to non-work-related events.

“The fact that they went from a three-or-more employee threshold to any employee, makes the work-relatedness issue that triggers reporting much less clear,” said Marc Freedman, executive director of Labor Law Policy at the U.S. Chamber of Commerce. “With three or more employees being hospitalized, there is virtually no question about whether their hospitalization is work related. When it’s only one employee, whether the hospitalization is work-related may not be clear, assuming no specific accident or incident has occurred.”

What Constitutes Inpatient Hospitalization?

The rule defines reportable hospitalizations as “formal admission” to inpatient care or treatment. It does not include admission for diagnostic testing or observation only. But OSHA stated that employers do have to report hospitalizations due to a heart attack, if the heart attack resulted from a work-related incident.

“I don’t think OSHA has a clear sense of how this will be implemented,” Conn said, pointing out that emergency room care is not formal admission. Conn said that OSHA has already acknowledged a “great deal of confusion” about the formal admission language. Formal admission means something very different to different groups and industries, like hospitals, insurers, patients and the general public, he said.

“What they have told me is to focus on the inpatient language and not on the formal admission piece. But it’s in the rule, and if they did not intend for that to influence what is a reportable hospitalization, it should not be in the rule.”

Conn said that OSHA is working on guidance to clarify its intent, and that generally the agency is going to ignore the formal admission language and focus on inpatient vs. outpatient hospitalizations.

OSHA provided Conn two examples of nonreportable injuries to clarify its intent:

A: An employee breaks his leg, goes to the emergency room (not formally admitted) and is treated before being released. “We would all look at that and say it is not a reportable injury in the context of this rule,” said Conn.

B: An employee breaks his leg, goes to the emergency room and begins to bleed out during treatment. He is treated and sent to another ward as an inpatient admission for monitoring due to blood loss. Since the patient was only admitted for monitoring, this is also not a reportable injury, OSHA told Conn.

Use Caution with Online Reporting Option

There will soon be three options for reporting incidents:

*By telephone to the nearest OSHA Area Office during normal business hours.

*By telephone to the 24-hour OSHA hotline (1-800-321-OSHA or 1-800-321-6742).

*Electronically, via a web portal which is not yet available.

Conn has several concerns about the online reporting option, including data security and written statements that could be used against employers in enforcement proceedings or civil litigation.

“I would caution employers against this new tool because it will require employers to memorialize an explanation about an incident that just occurred a few short hours earlier, and about which they cannot really know enough to commit to a description in writing that may later be used against them in enforcement proceedings,” advised Conn

Anything you submit in writing can be used against you by OSHA, plaintiffs’ attorneys, the media and unions, he said.

“My strong preference is the telephone option, and my strongest preference is using the telephone to actually speak to somebody. Leaving a voicemail is essentially the same thing as submitting electronically.” Give a very minimal version of what happened, about the same as what you would record in your OSHA 300 log, he said.

Nearly 200,000 Employers Must Start Keeping Injury Records

Certain covered employers are required to prepare and maintain records of serious occupational injuries and illnesses using the OSHA 300 Log. Employers in certain low-hazard industries are partially exempt from routinely keeping OSHA injury and illness records. Starting on Jan. 1, 2015, however, an estimated 199,000 establishments that had previously been partially exempt will be nonexempt. These low-hazard industries account for an estimated 173,000 injuries and illnesses per year, according to OSHA. In addition, 119,000 employers that were previously nonexempt will become partially exempt. These industries that these employers are in account for an estimated 76,000 injuries and illnesses per year.

The previous list of partially exempt industries was based on the older Standard Industrial Classification (SIC) system and injury and illness data from the Bureau of Labor Statistics (BLS) from 1996, 1997 and 1998. The updated list of partially exempt industries is based on the North American Industry Classification System (NAICS) and BLS injury and illness data from 2007, 2008 and 2009. “NAICS is the standard widely used by federal statistical agencies for the purpose of collecting, analyzing and publishing data on business establishments. SIC codes are rarely used anymore,” Michaels said.

The new rule maintains the recordkeeping exemption for any employer with 10 or fewer employees regardless of industry classification.

The new list of exempt industries includes gasoline stations, clothing stores, newspaper publishers, colleges and universities, and full-service restaurants.

Industries newly required to keep records include automobile dealers, liquor stores, bakeries, performing arts companies, museums, historical sites, and emergency and other relief services.

Michaels said that OSHA is planning an extensive outreach effort with employers required to keep OSHA logs for the first time. “We will notify establishments in industries that are new to keeping OSHA logs, explaining their new obligations and where to find resources to help them,” he said. These resources include tutorials, information fact sheets and FAQs on OSHA’s new recordkeeping webpage.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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