New OSHA Rules Require Employers to More Quickly Report Workplace Injuries, While New Federal Case Law Makes it More Difficult for Employers to Comply

By Steve Johnson on October 22, 2014 | Posted in Blog

New OSHA recordkeeping rules, which take effect on January 1, 2015, will require employers to report more types of work place injuries and report them more quickly.  However, a new federal court decision may make it harder to comply as the court ruled that employers are barred from requiring an employee to notify the employer before seeking medical treatment for a work related injury.

New OSHA Recordkeeping Rule

OSHA recently announced two key changes to its recordkeeping rule that will take effect on January 1, 2015.

First, all employers must now report:

  • All work-related fatalities within 8 hours.
  • All work-related hospitalizations, all amputations, and all losses of an eye within 24 hours.

Reports can be made by:

  • Calling OSHA’s free and confidential number at 1-800-321-OSHA (6742).
  • Calling your closest OSHA Area Office during normal business hours.

OSHA is in the process of developing an online form for this purpose which should be available very soon.  Prior to the new rule, OSHA required an employer to report only work-related fatalities and in-patient hospitalizations of three or more employees.  These requirements apply to all employers, including those who are otherwise exempt from the requirement to routinely keep records of work-related injury or illness.

Second, OSHA has updated and reduced the list of industries exempt from the requirement to routinely keep injury and illness records.  The new rule retains the exemption for businesses that maintain ten or fewer employees during the prior calendar year, regardless of industry classification.

The revised list of exempt industries is now classified by the North American Industry Classification System (NAICS) and is based on more recent data from the Bureau of Labor Statistics. Industries that are now covered under the new recordkeeping requirements include, building materials and supplies dealers, and commercial, industrial machinery, and equipment rental and leasing businesses.

Industries Now Required to Keep Records

NAICS Code
Title of NAICS Code
3118
Bakeries and tortilla manufacturing
4411
Automobile dealers
4413
Automotive parts, accessories, and tire stores
4441
Building material and supplies dealers
4452
Specialty food stores
4453
Beer, wine, and liquor stores
4539
Other miscellaneous store retailers
4543
Direct selling establishments
5311
Lessors of real estate
5313
Activities related to real estate
5322
Consumer goods rental
5324
Commercial and industrial machinery and equipment rental and leasing
5419
Other professional, scientific, and technical services
5612
Facilities support services
5617
Services to buildings and dwellings
5619
Other support services
6219
Other ambulatory health care services
6241
Individual and family services
6242
Community food and housing, and emergency and other relief services
7111
Performing arts companies
7113
Promoters of performing arts, sports, and similar events
7121
Museums, historical sites, and similar institutions
7139O
ther amusement and recreation industries
7223
Special food services
8129
Other personal services

Partially Exempt Industries

The following Employer Classifications are not required to keep OSHA injury and illness records unless asked in writing to do so by OSHA, the Bureau of Labor Statistics (BLS), or a state agency operating under the authority of OSHA or the BLS. All employers, including those partially exempted by reason of company size or industry classification, must report to OSHA any workplace incident that results in a fatality, in-patient hospitalization, amputation, or loss of an eye (see §190439).

NAICS Code
Title of NAICS Code
4412
Bakeries and tortilla manufacturing
4431
Automobile dealers
4461
Automotive parts, accessories, and tire stores
4471
Building material and supplies dealers
4481
Specialty food stores
4482
Beer, wine, and liquor stores
4483
Other miscellaneous store retailers
4511
Direct selling establishments
4512
Lessors of real estate
4531
Activities related to real estate
4532
Consumer goods rental
4812
Commercial and industrial machinery and equipment rental and leasing
4861
Other professional, scientific, and technical services
4862
Facilities support services
4869
Services to buildings and dwellings
4879
Other support services
4885
Other ambulatory health care services
5111
Individual and family services
5112
Community food and housing, and emergency and other relief services
5121
Performing arts companies
5122
Promoters of performing arts, sports, and similar events
5151
Museums, historical sites, and similar institutions
5172
ther amusement and recreation industries
5173
Special food services
5179
Other personal services
5181
Bakeries and tortilla manufacturing
5182
Automobile dealers
5191
Automotive parts, accessories, and tire stores
5211
Building material and supplies dealers
5221
Specialty food stores
5222
Beer, wine, and liquor stores
5223
Other miscellaneous store retailers
5231
Direct selling establishments
5232
Lessors of real estate
5239
Activities related to real estate
5241
Consumer goods rental
5242
Commercial and industrial machinery and equipment rental and leasing
5251
Other professional, scientific, and technical services
5259
Facilities support services
5312
Services to buildings and dwellings
5331
Other support services
5411
Other ambulatory health care services
5412
Individual and family services
5413
Community food and housing, and emergency and other relief services
5414
Performing arts companies
5415
Promoters of performing arts, sports, and similar events
5416
Museums, historical sites, and similar institutions
5417
ther amusement and recreation industries
5418
Special food services
5511
Other personal services
5611
Beer, wine, and liquor stores
5614
Other miscellaneous store retailers
5615
Direct selling establishments
5616
Lessors of real estate
6111
Activities related to real estate
6112
Consumer goods rental
6113
Commercial and industrial machinery and equipment rental and leasing
6114
Other professional, scientific, and technical services
6115
Facilities support services
6116
Services to buildings and dwellings
6117
Other support services
6211
Other ambulatory health care services
6212
Individual and family services
6213
Community food and housing, and emergency and other relief services
6214
Performing arts companies
6215
Promoters of performing arts, sports, and similar events
6244
Museums, historical sites, and similar institutions
7114
ther amusement and recreation industries
7115
Special food services
7213
Other personal services
7221
Bakeries and tortilla manufacturing
7222
Automobile dealers
7224
Automotive parts, accessories, and tire stores
8112
Building material and supplies dealers
8114
Specialty food stores
8121
Beer, wine, and liquor stores
8122
Other miscellaneous store retailers
8131
Direct selling establishments
8132
Lessors of real estate
8133
Activities related to real estate
8134
Consumer goods rental
8139
Commercial and industrial machinery and equipment rental and leasing

Employers now barred from requiring an employee to notify the employer before seeking medical treatment for a work related injury

On September 24, 2014, the United States District Court for the Northern District of Illinois issued an opinion in Stevenson v. FedEx concluding that the Illinois Workers Compensation Act (“IWCA”) does not permit employers to impose a requirement that an employee must first report an injury to the employer before seeking medical treatment for a work-related injury.

In a decision that may make compliance with the newly issued OSHA requirements referenced above more difficult for employers, the District Court decision found the FedEx company policy requiring the immediate reporting of workplace injuries (whether the required only minor first aid or professional medical treatment) to be in violation of the IWCA.  The FedEx policy merely required that an employee wishing to seek medical treatment for a work-related injury “attempt to provide advance notice to management.”  Failing to comply with this company policy subjected an employee to discipline up to and including termination.

7633761804_f2afcf27d0_zThe facts of Stevenson are troubling for employers in that he went to his supervisor to report that he was suffering from a sore back and FedEx placed him on light duty to accommodate his condition.  Stevenson did not request or seek medical treatment and continued to work his next five shifts on light duty before deciding to seek medical treatment for his condition without first attempting to notify his supervisor.  Stevenson returned to work the next day with a doctor’s note requesting that he be kept on light duty until a functional capacity examination could be performed and physical therapy completed.  However, Stevenson did not present the physician’s note until after he completed working his shift.  Upon presenting the note to his supervisor, Stevenson was terminated for violating the FedEx policy requiring employees to attempt to notify their supervisor prior to seeking medical treatment for a work-related injury.  Stevenson filed suit for retaliatory discharge, which was removed to federal court.

The case was decided based solely upon the pleadings including Plaintiff’s admission that he was terminated for failing to notify his supervisors or management prior to seeking medical treatment for a work injury and FedEx’s admission that the IWCA protects Stevenson’s actions in seeking medical care from his own provider and in filing a Workers’ Compensation claim.

Citing 820 ILCS 305/4(h), which states in relevant part:  “It shall be unlawful for any employer . . . to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her under this Act . . . . It shall be unlawful for any employer . . . to discharge . . . an employee because of the exercise of his or her rights or remedies granted to him or her by this Act”, the court concluded that the unqualified language of the statute compelled the Court to conclude that imposing even modest requirements as a precondition to seeking medical treatment is interference within the meaning of Section 4(h).

It remains to be seen whether FedEx will seek appellate review of this decision.  However, employers should be aware that any requirement that could be seen as a precondition to an employee exercising his or her rights under the IWCA, no matter how reasonable, could expose the employer to liability.

Image by Torbakhopper licensed under CC BY 2.0