OSHA Proposes to Rewrite List of Businesses That Must Report Workplace Injuries, Illness

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New and used car dealerships, hardware stores, residential property management firms, museums, pet supply stores, retail bakeries, and 52 other types of industries would be required for the first time to record workplace injuries and illnesses under an Occupational Safety and Health Administration proposed rule in the June 22 Federal Register (76 Fed. Reg. 36,414).

At the same time, 72 other sectors, including corporate offices, cellular phone operators, newspaper publishers, and travel agencies, would be relieved from having to record their injuries and illnesses, the proposal said.

The changes, which affect Appendix A to Subpart B of OSHA's recordkeeping rule (29 CFR 1904), are being made as a result of a migration from the Standard Industrial Classification (SIC) system to the newer North American Industry Classification System (NAICS).

Move to NAICS

OSHA began moving to NAICS in 2003 for some of its data sets, but still uses SIC codes in the list of partially exempted industries. The agency first raised the issue of converting its exempted employers list from SIC to NAICS codes in 2001, OSHA said.

In total, the proposal would add 198,763 establishments encompassing 5.3 million workers to the list, OSHA said. It would also remove 119,374 establishments, affecting 4 million workers, from the list.

Under the proposed rule, OSHA would also use Days Away, Restrictions and Transfer (DART) rates compiled by the Bureau of Labor Statistics for 2007, 2008, and 2009 as a basis for determining which industry sectors qualify for the list, the agency said.

While certain businesses may be exempted from the reporting requirements, BLS can still seek to collect data from them through its Survey of Occupational Injuries and Illnesses, OSHA said.

Employers with 10 or fewer employees would continue to be exempt from OSHA's recordkeeping requirements, OSHA said.

Reporting Window to Be Narrowed

The proposed rule also would lower the threshold for when OSHA must be notified about hospitalizations from three workers hospitalized to one. According to OSHA, the new requirement would ensure that the agency “will be informed about many more of these serious occurrences.”

The proposal also would establish a new reporting requirement for work-related amputations, with a 24-hour time limit.

An amputation is defined by BLS as “the traumatic loss of a limb or other external body part, including a fingertip,” OSHA said. In order for an injury to qualify as an amputation, bone must be lost, according to OSHA.

May Increase Knowledge Base

Adam Finkel, executive director of the University of Pennsylvania Law School's Program on Regulation, praised the proposal June 21.

“It's going to really increase the knowledge base for the agency,” Finkel said of the new threshold for hospitalizations. “They'll be able to know what's going on during the year.”

On the new amputations requirement, Finkel said, “That's in the category of pretty severe things that can happen to you. If you lose a finger, you might be able to get patched up and sent home without being an inpatient, but it's a serious event.”

Finkel, a former OSHA health standards director, criticized the proposal for not including a greater health focus.

“It's one more safety-oriented recordkeeping improvement,” Finkel said. “What about people who get hospitalized because of some disease which is clearly work-related? We're not taking any opportunity to even ask questions about whether they might be some way to do that.”

Long Overdue for Performing Arts

Monona Russell, a safety officer with the International Alliance of Theatrical Stage Employees, hailed the proposed addition of theater companies, dinner theaters, dance companies, and other performing arts companies to the list of employers that must keep records.

“It's long overdue,” Russell said June 21. “We're killing off workers. People fall off the edge of the stage, fall from the rigging, get crushed by pieces of scenery.”

Moreover, said Russell, stage employees are generally unwilling to report their own injuries and illnesses, “because there's 100 people standing in line for their job. They won't get hired for their next gig. So they have no protections, and there's no whistleblower [protection] that's going to work.”

Higher Threshold Could Mean More Inspections

Michael Taylor, an attorney with Arent Fox, warned that “raising the threshold for notifying OSHA of an injury or illnesses in the workplace will definitely lead to more inspections and therefore more citations,” particularly for amputations.

The agency said the proposed rule is expected to impose net costs of $8.5 million, and between $50 and $100 per establishment. As a result, the proposal is not a significant regulation and thus is not subject to Office of Management and Budget review.

Comments are due Sept. 20 and should be submitted to the OSHA Docket Office, U.S. Department of Labor, Room N-2625, 200 Constitution Ave. N.W., Washington, D.C., 20210, by fax to (202) 693-1648, or online at http://www.regulations.gov. All submissions should be identified by docket number OSHA-2010-0019.

By Stephen Lee

The OSHA proposed rule on workplace injury and illness records is available at http://www.gpo.gov/fdsys/pkg/FR-2011-06-22/pdf/2011-15277.pdf .