Skip to Content

Knowledge

OSHA’s New Reporting Rules: How rather basic concepts morphed into incredibly strained definitions

10/26/2015

Effective January 1, 2015, the rules related to the reporting of certain incidents to OSHA changed. The old rules required that employers report the hospitalization of three or more employees and the death of one or more employees. The new rules require employers to report deaths of one or more employees, amputations, eye losses, and the overnight hospitalization of one or more employees for more than observation.

Overnight Hospitalization

This last reporting trigger, overnight hospitalization for more than observation, would appear to be the least nuanced of all of these triggers, but first impressions are often wrong. Employers providing an employee a non-prescription strength ibuprofen is not considered medical treatment. However, if that same non-prescription strength ibuprofen is administered during an overnight hospitalization, even if for reasons completely unrelated to the purpose of the hospitalization, OSHA considers the hospitalization to be for more than observation and it is reportable.

Additionally, though not clearly set forth in the materials OSHA issued to publicize the change in these rules, testing during an overnight hospitalization does not trigger an obligation to report the hospitalization to OSHA. What is not clear, however, is if testing that requires the administration of medicine (radioactive materials for certain imagining studies) would trigger the reporting obligation.

The loss of an eye, regardless of how it is caused, is considered a reportable event. However, if the employee receives no medical treatment during an overnight hospitalization after losing eyesight, that loss of eyesight is reportable (even if the eye is not lost). Obviously, the converse is true, also, and an injury that results in loss of vision, but not an overnight hospitalization, is not reportable to OSHA. Further, if vision or the eye is not lost within 24 hours of the incident causing the loss of vision or eye, no reportable event has occurred.

Amputation and Heart Attacks

Amputation is generally understood as the removal of a digit, appendage, or other body part, regardless of the method of removal (including surgical). Of course, as OSHA is a government agency, the definition cannot be that simple. The definition of amputation under 29 CFR 1904.39(b)(11) is "the traumatic loss of a limb or other external body part . . . such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially); fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached."

Removal of the ear, regardless of the means, is not considered an amputation. However, removal of even the most miniscule portion of the fingertip is considered an amputation.

Note that OSHA’s definition of amputation does not include avulsion. Miller-Keane Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health, Seventh Edition, © 2003 defines avulsion as “the tearing away of a structure or part either accidentally or surgically.” Thus, if the hand is removed by the shearing of an unguarded press, it is an amputation and reportable. However, if the same hand were torn from the body because it was caught in a rotating shaft, it would be an avulsion, and not a reportable amputation.

Again, leave it to a government agency to come up with the most convoluted of rules, but if the eye loss or the amputation occurs 30 days after the incident that triggered it, the eye loss or amputation is not reportable. Unscrupulous employers could use this “out” and attempt to persuade physicians to try to save the eye or appendage until the 30 days pass.

Though OSHA has not done a very good job of publicizing one aspect of the rule, it should be noted that 29 CFR 1904.39(b)(5) all heart attacks that result in death or in-patient hospitalization are to be reported to OSHA. Thus, though the hospitalization may only be for observation and no treatment administered during the hospitalization, if an employee has a heart attack at work, it must be reported to OSHA. Of course, OSHA places responsibility for determining work-relatedness with respect to recordkeeping on the employer’s shoulders for all injuries and illnesses, except for heart attacks, in which case OSHA believes it is better qualified to review the employee’s medical records and make that determination.

We will continue to monitor this issue and write about significant developments in the future.