OSHA Finalizes Rules Requiring Health Care Employers to Report Injuries

Litigation Practice Group

By Litigation Practice Group

The federal Occupational Safety and Health Administration (OSHA) implemented rules on January 1, 2015 which place additional requirements on employers under OSHA jurisdiction (and with greater than 10 employees) to report occupational injuries and illnesses. This new data is going to be made public, which would allow individuals, companies, or labor unions to view injury reports submitted by health care providers.

Currently, employers in Missouri are required to report work injuries to the state if an employee sustains an injury at work requiring medical treatment beyond immediate first aid. The information is not made public, but is rather provided only to the state as a reporting requirement. In fact, workers’ compensation trials or hearing are not generally open to the public. Express consent is usually required of the parties or their attorneys for a member of the general public to watch these court proceedings.

Under the current OSHA regulations, fatalities must be reported within eight hours. The regulations add additional requirements and require all employers to report work-related in-patient hospitalizations, as well as amputations or incidents where someone loses an eye, within 24 hours.

The rule requiring health care employers to track this information is not new. All federal agencies have been required to submit OSHA-required injury and illness data to the Bureau of Labor Statistics since 2013. The purpose of the proposal was to reduce occupational diseases within the federal government workforce.

The advantage of the federal reporting requirement is that it will provide employers with a better idea as to the types of injuries employees are sustaining, and the activities that are contributing to the greatest percentage of those injuries. That said, this information should be tracked by the employer regardless of reporting requirements to the federal government. Employers should also take care to implement safety requirements for their employees, and be certain to enforce the safety rules they impose. For example, in a hospital or health care setting, certified nurse’s assistants are frequently required to lift, roll, or otherwise move patients. A requirement that certified nurse’s assistants work in pairs to lift patients or use some lifting device such as a hoist may reduce the number of workplace accidents involving those employees.

There is a concern, however, especially in hospitals, that patient records (typically protected from disclosure as private) will somehow be compromised through electronic reporting that would otherwise violate federal Health Insurance Portability and Accountability Act (HIPAA) rules.

Further concerns include the fact that injured employees’ names are being released to OSHA (and then perhaps made public), conceivably against their wishes. The Americans with Disabilities Act (ADA) prevents discrimination against people with disabilities in employment. As such, an employer may not discriminate against an individual with a known disability, whether physical or mental, and refusing to hire someone due to an actual or perceived disability is prohibited. While employers cannot discriminate against an employee because of a prior workplace injury due to potential violations of the ADA, if information concerning workplace injuries becomes public, who is to say that prospective employers will not use that information against an employee (or prospective employee)? There is concern that employers may be able to discriminate more easily if OSHA’s injury reports become public record.

While the regulation indicates that an injured employee’s name may become public, there is still question regarding whether OSHA will publish that information. However, even if OSHA chooses not to publish an injured employee’s name, even publishing an employer’s name in certain geographic areas could prove problematic to injured workers. For example, if an employee is injured in a small town and the employer’s name is published, people (including future prospective employers, if applicable) will be able to determine which employee sustained an injury.

Under the new OSHA rules, employers may choose to report workplace injuries in one of three ways:

  • by telephone to the nearest OSHA area office during normal business hours;
  • by telephone to the 24-hour OSHA hotline; or
  • electronically via the web.

The concern that patient information is going to be improperly disseminated via an electronic transmission is valid, though it seems the responsibility of the health care employer to ensure that this information be kept private.

Further, the electronic means of reporting may not be in the best interest of the employer. By reporting a work injury electronically, the employer is providing a written explanation of the injury. Employers should always thoroughly investigate workplace injuries, though this often takes more time than the OSHA reporting requirements allow (see above). An employer that has not had a chance to thoroughly investigate a workplace injury, but which reports the injury to OSHA in written documentation, is providing an account of the injury which could later be used against that employer in a court proceeding. As such, it may be best for the employer to speak with OSHA representatives via telephone to give an initial account of how the injury occurred. It should be noted that at the present time electronic reporting it not available.

Not all employers are required to adhere to these OSHA reporting requirements. For a complete list of exempt employer codes, please visit: https://www.osha.gov/recordkeeping/ppt1/RK1exempttable.html.

The potential impact of the new OSHA reporting requirements extends beyond health care providers with implications for a large number of employers. It is important for all employers to determine whether or not they have to meet the requirements under OSHA’s new rules.

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