“OSHA nunca llego.” [Translation: "OSHA never came."] That was the disappointed phrase I heard from a worker who told me about his on-the-job injury. He was a temp worker hired by a moving company to relocate a small manufacturing company. The worker’s shoe got caught in a faulty industrial dumbwaiter and his toes were smashed. He was patched up at a local urgent care clinic, but developed a serious infection a couple of weeks later. Gangrene set in and his toes had to be amputated. He still suffers pain and walks with a limp.
The fact that “OSHA nunca llego” surprised this worker. Like the public at large, the worker thought OSHA would investigate the incident. Afterall, he lost part of his foot. What he didn't know is there’s no requirement for employers to report to OSHA a serious injury of this nature.
Under current federal OSHA regulations, there’s a high bar for employers before they are required to report serious incidents to the agency: a fatality or the hospitalization of three or more workers. But that will change on January 1, 2015 in regulations announced last week by OSHA.
In the 29 states covered by federal OSHA, employers will be required to report to the agency all work-related in-patient hospitalizations, amputations and losses of an eye, within 24 hours of the event. In the case of a fatality or hospitalization of three or more workers, they are already required to report those incidents within 8 hours.
The 21 states that run their own OSHA programs have six months to adopt the new OSHA rule or one of their own that is more stringent. Six of these State OSHA agencies already have a rule on the books that is comparable or more robust than the new federal regulation. For example:
- Alaska OSHA: Since 1976, employers have been required to report within 8 hours, occupational accidents that result in the death or overnight hospitalization of one or more employees.
- Utah OSHA: Since 2002, employers have been required to report, within 8 hours, work-related fatalities, disabling, serious, or significant injuries, and occupational disease incidents.
- Washington OSHA: Since 2009, employers have been required to report, within 8 hours, the death, or probable death, of any employee, or the in-patient hospitalization of any employee.
In announcing the new rule, OSHA chief David Michaels made the case for the reporting amputations:
“Last year, OSHA was notified after a worker was struck and killed when he entered a large wire mesh manufacturing machine to retrieve a fallen metal bar. The worker killed was 32 year old Luis Rey Rivera Pavia – he was the sole supporter of his mother, who lives in a small village in Mexico. His death should never have occurred. The light curtain that would have automatically turned the machine off before he entered the danger zone had been disabled. During our inspection, OSHA learned that previously, two other workers at that same factory had been severely injured on this same piece of machinery — one worker suffered an amputation and the second had his right forearm crushed by that same machine. Earlier this year, we issued a fine of almost $700,000 against Wire Mesh Sales, of Jacksonville, Florida. However, I believe that if we had been notified after that amputation, or after his co-worker was hospitalized with a crushed forearm, Mr. Rivera might be alive today.”
OSHA estimates that it will receive annually reports for 6,300 amputations, and for about 112,000 in-patient hospitalizations. The total cost to employers is an estimated $2.6 million per year.
OSHA proposed these changes in June 2011 and took comments from the public for four months on its proposal. The agency submitted its draft final rule for review to the White House’s Office of Information and Regulatory Affairs (OIRA) in February 2014. OIRA’s review, which is supposed to be no longer than 135 days, extended more than six months.
OSHA last revised these reporting requirements in 1994. Prior to that, stemming back to 1971, employers were only required to report hospitalizations if it involved five or more employees. The report had to be made within 48 hours. The 1994 rule changed the threshold to three employees and required the report be made within in eight hours.
These new OSHA requirements do not go as far as what is required of employers in the mining industry. Following the 2006 Sago mine disaster, Congress mandated that mine operators notify MSHA within 15 minutes of the death of an employee or serious injury incident. There are a host of injury and non-injury incidents that must be reported to MSHA within 15 minutes. Failure to comply will result in a penalty of at least $5,000 and up to $60,000. OSHA penalties for failing to report incidents will be a fraction of these MSHA amounts.
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