Proposed OSHA Injury and Illness Recordkeeping Rule Would Force Employers to Report Amputations & All In-patient Hospitalizations

OSHA is proposing two changes to the Recordkeeping Standard (29 CFR 1904) that would have significant consequences for employers. The first change is to section 1904.39, the eight hour reporting requirements for serious injuries and fatalities. The second change is to 1904.2,the way OSHA determines partially exempt industries from the recordkeeping standard – which will create a number of new partially exempt industries, but also move other industries off of the partially exempt list.

According OSHA’s news release, current regulations require “an employer to report to OSHA, within eight hours, all work-related fatalities and in-patient hospitalizations of three or more employees. Under the revised proposal, employers would be required to report to OSHA any work-related fatalities and all in-patient hospitalizations within eight hours, and work-related amputations within 24 hours. Reporting amputations is not required under the current regulation.”

In the proposed rule an amputation is defined as a “traumatic loss of a limb or other external body part, including a fingertip. In order for an injury to be classified as an amputation, bone must be lost. Amputations include loss of a body part due to a traumatic incident, a gunshot wound, and medical amputations due to irreparable traumatic injuries. Amputations exclude traumatic injuries without bone loss and exclude enucleation (eye removal). A reportable amputation under the proposed rule would include those that occur at the workplace as well as those that occur in a hospital as a result of a work-related event.”

The above changes will mean companies are reaching out to OSHA within that eight hour time frame on a more frequent basis.

The second change OSHA is proposing is to the way it determines partially exempt industries from the Recordkeeping Standard. Under the old system, DART rates are matched up to industries using the Standard Industrial Classification system (SIC). DART stand for Days Away, Restrictions and Transfers. OSHA’s proposed Recordkeeping Rule says “The DART rate represents the total non-fatal injuries and illnesses resulting in days away from work, restricted work activity, and/or job transfer per 100 full-time employees for a given period of time (usually 1 year).”

Under the proposed change, OSHA would match updated DART rates to the North American Industry Classification System’s (NAICS) list of industries. This change would add some new industries to the partially exempt list, while knocking others off. The list of industries no longer partially exempt include the following [NAICS codes are in parenthesis):

·         Bakeries and Tortilla Manufacturing (3118)

·         Automobile Dealers (4411)

·         Automotive Parts, Accessories, Tire Stores (4413)

·         Building Material and Supplies Dealers (4441)

·         Specialty Food Stores (4452)

·         Beer, Wine, and Liquor Stores (4453)

·         Other Miscellaneous Store Retailers (4539)

·         Direct Selling Establishments (4543)

·         Activities Related to Real Estate (5313)

·         Consumer Goods Rental (5322)

·         Commercial and Industrial and Equipment Rental and Leasing (5324)

·         Other Professional, Scientific, Technical Services (5419)

·         Facilities Support Services (5612)

·         Services to Buildings and Dwellings (5617)

·         Other Support Services (5619)

·         Other Ambulatory Health Care Services (6219)

·         Individual and Family Services (6241)

·         Community Food and Housing, and Emergency and Other Relief Services (6242)

·         Performing Arts Companies (7111)

·         Promoters of Performing Arts, Sports, and Similar Events (7113)

·         Museums, Historical Sites, and Similar Institutions (7121)

·         Other Amusement and Recreation Industries (7139)

·         Special Food Services (7223)

·         Other Personal Services (8129)


OSHA is seeking comments on the proposed changes until September 20, 2011 and their questions include:

For Section 1904.39

1.       What types of incidents and/or injuries and illnesses should be reported to OSHA and why?

2.       Are there any injuries, illnesses, or conditions that should be reported to OSHA and are not included among in-patient hospitalizations?

3.       Should amputations that do not result in in-patient hospitalizations be reported to OSHA?

4.       Should OSHA require the reporting of all amputations?

5.       Should OSHA require the reporting of enucleations?

6.       Are there additional data or estimates available regarding the number of work-related incidents involving in-patient hospitalizations? Is there information available on how many work-related hospitalizations occur more than 30 days after the report of an injury or illness?

7.       Should OSHA allow reports to be made by means other than a telephone, such as by e-mail, fax, or a Web-based system?

8.       Are the reporting times of eight hours for fatalities, eight hours for in-patient hospitalizations, and 24 hours for amputations generally appropriate time periods for requiring reporting? What advantages or disadvantages would be associated with these or any alternative time periods?

For Section 1904.2

1.       Should any additional industries be exempt from any of the recordkeeping requirements in Part 1904?

2.       Should OSHA base partial exemptions on more detailed or more aggregated industry classifications, such as two-digit, three-digit, or six-digit NAICS codes?

3.       Which industry sectors, if any, should be ineligible for partial exemption?

4.       Instead of using an average DART rate of 75 percent of the most recent national DART rate, is there a better way to determine which industries should be included in Appendix A?

5.       Should OSHA consider numbers of workers injured or made ill in each industry in addition to industry injury/illness rates in determining eligibility for partial exemption?

6.       Are there any other data that should be applied as additional or alternative criteria for purposes of determining eligibility for partial exemption?

7.       Should OSHA regularly update the list of lower-hazard exempted industries? If so, how frequently should the list be updated?

8.       Are there any specific types of training, education, and compliance assistance OSHA could provide that would be particularly helpful in facilitating compliance with the recordkeeping requirements?

If you would like to comment, you can do so electronically at docket OSHA-2010-0019, or regulatory information number (RIN) 1218-AC50. Instructions for submitting comments via fax and mail can be found in the proposed rule.