Most of us know that employees who sustain work-related injuries are often entitled to workers’ compensation coverage. Most of us know that employers are legally required to have workers’ compensation insurance. It’s unlikely that you will find a way around those requirements–but do you have to keep a record of all work-related injuries and illnesses? Do you have to report them to the Occupational Health and Safety Administration (OSHA)? The short answer is…maybe. For the slightly longer and hopefully more helpful answer, join The EmpLAWyerologist after the jump…
While both OSH-Act and workers’ compensation laws will involve work-related injuries and illnesses these laws use the information for different purposes. An employee can sustain a work-related injury or contract a work-related illness that is eligible for workers’ compensation coverage under a given state’s applicable laws, that may not meet the criteria for an OSHA recordable/reportable injury. Conversely, a work-related illness or injury may be OSHA recordable/reportable but not meet the eligibility criteria for workers’ compensation coverage. (The specific criteria for workers’ compensation coverage can vary from state to state. If you need to know more about which types of work-related injuries will trigger workers’ compensation coverage, you will want to consult with a workers’ compensation attorney in the state(s) in which you employ people.)
First, what’s the difference between a reportable and a recordable injury? A reportable illness or injury is one that must be reported to the OSH-Administration within a certain timeframe by either calling a confidential hotline, filling out an online form once it’s available (once it’s out, you can find it here) or calling or visiting the closest area office during normal business hours. (You can find the contact information for those offices here). A recordable illness or injury is one that covered employers must enter onto a special form (which you can find here). Actually there are a few forms. There is the log of work-related injuries and illnesses , or Form 300; the summary of work-related illnesses and injuries, or Form 300A, and the Injury and Illness Incident Report, or Form 301, also known as OSHA 300 logs.You need only fill out an incident report if a recordable injury or illness occurred. You must fill out and post the Summary annually even if no recordable injuries occurred. If you are covered under OSH-Act reporting requirements, you must create and retain records of serious occupational injuries or illnesses. If you are not covered by these requirements, you may still be required to report certain serious work-related illnesses and injuries.
OK, you are probably thinking, I know the difference between reportable and recordable injuries, but a) how do I know if I am a covered employer; b) if I’m a covered employer, how do I know which injuries I must record; and c) whether or not I’m covered, how do I know which injuries/illnesses I must report? Those are great questions. Thank you for asking — or at least — thinking them. Since I’m in a very helpful mood at the moment, I’m going to try to answer them for you. Here goes:
The short (and admittedly smart-alek) answer is you are a covered employer if the OSH-Act lists you as an employer that must keep such records. Now, smart-alek answers are sometimes amusing, but not so helpful here. So let’s go a little deeper. In general the more risky your business is perceived to be and the higher its industry’s rate of occupational illnesses and diseases, the more likely it will be a covered employer, subject to reporting requirements. The OSH-Administration updated its recording and reporting rules on September 11, 2014 and they went into effect on January 1, 2015. Employers with 10 or fewer employees, regardless of industry classification are exempt from OSH-Administration reporting requirements. This exemption existed under old rules and remains under the new rules. Second, whereas under the old rules lists of exempt industries were based on the Standard Industrial Classification (SIC) system and injury and illness data from the Bureau of Labor and Statistics (BLS) data from 1996 through 1998, the new list of exempt industries is based on the North American Industry Classification System (NAICS) and injury and illness data kept by the BLS from 2007 through 2009. OK, that’s nice, but what does it mean. Well, first the list of industries exempt from requirements to routinely keep such records is based on more up-to-date information, and second, the updated list appears to include more industries felt to be “low-hazard” industries. Some examples: real estate, legal services, and financial services would be considered low-hazard. Conversely, manufacturing or construction is generally subject to OSH-Administration record keeping requirements. You can check with the NAICS list here to see if your industry is covered.
So what injuries and reportable and which are recordable? A recordable injury will generally be one that requires medical treatment beyond first aid or diagnosis of the injury/illness that has occurred in a work-related environment — and it must be a new case. (Note that recurrence of symptoms from a previous workplace/injury due to an event or exposure in the work environment will usually be a new case.) The injury must result in absence from work, or restrictions in work, or job transfer, medical treatment, or loss of consciousness. If the injury is recordable it is likely reportable, which means you must call or visit your nearest OSH-Administration office to report it. In addition to recordable injuries, however, the following injuries are reportable by all employers, even those not covered under record keeping requirements: a) All work-related fatalities –and they must be reported within 8 hours of (the earlier of) occurrence/discovery; and b) work-related in-patient hospitalizations, amputations, and losses of eyes within 24 hours. (You can see how potentially every business would be subject to OSH-Act and OSH-Administration requirements to at least a degree.)
That’s enough for now. Come back next week and we’ll take a look at OSHA and workplace violence issues. Class dismissed.
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
Click here to register — and get HRCI credits for the recorded presentation of my webinar on Pre-Employment Screening.
If you want to really be up to date on hot-button employment law topics, with a monthly EmpLAWyerology Alert subscription and learn about upcoming webinars email email@example.com.
“Like” The EmpLAWyerologist on Facebook, by clicking here.