9.17.14

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On September 11, 2014, the Occupational Safety and Health Administration (OSHA) announced a final rule containing two amendments to the Agency's injury and illness recordkeeping and reporting regulations that will go into effect on January 1, 2015.

The first amendment changes the current requirement for employers to report only work-related fatalities and the in-patient hospitalization of three or more employees. Under the new rule, employers will also be required to report to OSHA when even a single employee suffers a work-related in-patient hospitalization, an amputation, or the loss of an eye.

OSHA defines "hospitalization" as "a formal admission to the in-patient service of a hospital or clinic for care or treatment," but not if only for observation or diagnostic testing. OSHA's definition of "amputation" includes "fingertip amputations with or without bone loss, medical amputations resulting from irreparable damage, and amputations of body parts that have since been reattached." It does not include "avulsions (tissue torn away from the body), deglovings (skin torn away from the underlying tissue), scalpings (removal of the scalp), severed ears, or broken or chipped teeth."

While a work-related fatality will still have to be reported within eight hours of the employer's learning of it, the new rule allows employers 24 hours to report a hospital admission, amputation, or loss of an eye. However, if that hospitalization, amputation, or eye loss does not occur within 24 hours of the work-related incident that caused or contributed to it, then the incident need not be reported to OSHA. The new rule also does not change the current provision that requires fatalities to be reported only if the death occurs within 30 days the work-related incident. 29 CFR §1904.39(b)(6).

All employers who are covered by the OSH Act, even those who are exempt from maintaining injury and illness records, will continue to be required to comply with the new injury and illness reporting requirements. While currently those reports must be made either by telephone or in-person, employers will be allowed under the new rule to use a Web portal that OSHA is developing to file the reports electronically, in addition to the current phone reporting options. According to OSHA Assistant Secretary David Michaels, OSHA plans to post the employer reports for some severe injuries and illnesses, and for all fatalities, on the Agency's public website. The reports would then be readily available for unions, public interest groups, the media, and any other individuals or organizations to use for any purpose.

State OSHA agencies are expected to follow suit with similar amendments, although Alaska, California, Hawaii, Kentucky, Oregon, Utah, and Washington already have their own injury and illness reporting requirements that are similar to, and in some cases more stringent than, the amended Federal OSHA reporting requirement.

The second amendment in the new rule updates the list of industries that are exempted from keeping injury and illness records because of their relatively low occupational injury and illness rates. The new list is based on more recent injury and illness data and uses the newer North American Industry Classification System (NAICS code) instead of the Standard Industrial Classification system (SIC code) that has been used since the OSHA recordkeeping rules were first issued in 1982.

As in the past, the new low-hazard industry exemption applies to individual business establishments. If a company has several establishments that perform different business activities, some of the company's establishments may be required to keep injury and illness records, while others may be exempt. Under the old SIC system, establishments that exist solely to serve other establishments of the same enterprise, like a distribution center, warehouse, or headquarters office, were considered to be "ancillary" to the establishments they serve and take the SIC code of the served establishments. Under the new NAICS system, there are no "ancillary" establishments. Establishments that carry out support activities for other establishments of the enterprise to which they belong are classified according to the NAICS code related to their own activity. This means, for example, that warehouses providing storage facilities for their own company's electronics and appliance stores are classified with the NAICS code for non-exempt warehouses rather than the NAICS code for the stores which will be exempt from keeping injury and illness records. Regardless of the establishment's NAICS code, however, the new rule maintains the exemption for any employer with a total of 10 or fewer employees throughout the company.

The following is OSHA's new list of NAICS codes for low-hazard industries in which establishments are not required to keep injury and illness records, unless specifically requested to do so by the Bureau of Labor Statistics (BLS) or some other government entity:

NAICS Code

Industry Description

NAICS Code

Industry Description

4412

Other Motor Vehicle Dealers

5411

Legal Services

4431

Electronics and Appliance Stores

5412

Accounting, Tax Preparation, Bookkeeping, and Payroll Services

4461

Health and Personal Care Stores

5413

Architectural, Engineering, and Related Services

4471

Gasoline Stations

5414

Specialized Design Services

4481

Clothing Stores

5415

Computer Systems Design and Related Services

4482

Shoe Stores

5416

Management, Scientific, and Technical Consulting Services

4483

Jewelry, Luggage, and Leather Goods Stores

5417

Scientific Research and Development Services

4511

Sporting Goods, Hobby, and Musical Instrument Stores

5418

Advertising and Related Services

4512

Book, Periodical, and Music Stores

5511

Management of Companies and Enterprises

4531

Florists

5611

Office Administrative Services

4532

Office Supplies, Stationery, and Gift Stores

5614

Business Support Services

4812

Nonscheduled Air Transportation

5615

Travel Arrangement and Reservation Services

4861

Pipeline Transportation of Crude Oil

5616

Investigation and Security Services

4862

Pipeline Transportation of Natural Gas

6111

Elementary and Secondary Schools

4869

Other Pipeline Transportation

6112

Junior Colleges

4879

Scenic and Sightseeing Transportation, Other

6113

Colleges, Universities, and Professional Schools

4885

Freight Transportation Arrangement

6114

Business Schools and Computer and Management Training

5111

Newspaper, Periodical, Book, and Directory Publishers

6115

Technical and Trade Schools

5112

Software Publishers

6116

Other Schools and Instruction

5121

Motion Picture and Video Industries

6117

Educational Support Services

5122

Sound Recording Industries

6211

Offices of Physicians

5151

Radio and Television Broadcasting

6212

Offices of Dentists

5172

Wireless Telecommunications Carriers (except Satellite)

6213

Offices of Other Health Practitioners

5173

Telecommunications Resellers

6214

Outpatient Care Centers

5179

Other Telecommunications

6215

Medical and Diagnostic Laboratories

5181

Internet Service Providers and Web Search Portals

6244

Child Day Care Services

5182

Data Processing, Hosting, and Related Services

7114

Agents and Managers for Artists, Athletes, Entertainers, and Other Public Figures

5191

Other Information Services

7115

Independent Artists, Writers, and Performers

5211

Monetary Authorities - Central Bank

7213

Rooming and Boarding Houses

5221

Depository Credit Intermediation

7221

Full-Service Restaurants

5222

Nondepository Credit Intermediation

7222

Limited-Service Eating Places

5223

Activities Related to Credit Intermediation

7224

Drinking Places (Alcoholic Beverages)

5231

Securities and Commodity Contracts Intermediation and Brokerage

8112

Electronic and Precision Equipment Repair and Maintenance

5232

Securities and Commodity Exchanges

8114

Personal and Household Goods Repair and Maintenance

5239

Other Financial Investment Activities

8121

Personal Care Services

5241

Insurance Carriers

8122

Death Care Services

5242

Agencies, Brokerages, and Other Insurance Related Activities

8131

Religious Organizations

5251

Insurance and Employee Benefit Funds

8132

Grantmaking and Giving Services

5259

Other Investment Pools and Funds

8133

Social Advocacy Organizations

5312

Offices of Real Estate Agents and Brokers

8134

Civic and Social Organizations

5331

Lessors of Nonfinancial Intangible Assets (except Copyrighted Works)

8139

Business, Professional, Labor, Political, and Similar Organizations

If you have any questions about the new OSHA reporting requirements or recordkeeping exemptions, feel free to e-mail one of our OSHA Practice Group members at Bill Principe at bprincipe@constangy.com, Steve Simko at ssimko@constangy.com, David Smith at dsmith@constangy.com, Pat Tyson at ptyson@constangy.com, or Neil Wasser at nwasser@constangy.com. You may also call us at 404-525-8622.

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Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 130 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.

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