Employers have to report workplace accidents and injuries to OSHA, whether Cal/OSHA, Fed/OSHA or another state’s OSHA, within 8 hours of knowing that an injury or illness is “serious.” Let’s look at what that means.
In California, under Title 8, California Code of Regulations section 342(a), an injury or illness is “serious” if it results in death, “loss of a member of the body,” serious permanent disfigurement, or hospitalization for over 24 hours for “other than observation.” Below we discuss these categories, and how long after an event the employer’s obligation to report lasts.
Death is pretty obvious.
Not so “loss of a member of the body.” (Who dreams up these categories?) Since we have been doing Cal/OSHA defense work, this has been interpreted to mean loss of bone and has not included loss of flesh, cartilage (e.g., noses, fingernails) or enamel (e.g. teeth). So, in the most common scenario where this category comes into play, an accident which results in the loss of flesh and the nail from the tip of a finger is not reportable. But if there is ANY loss of bone, whether in the accident or during a surgical repair, the injury must be reported.
This definition was tested in a case we defended a few years ago, where a worker suffered a grisly laceration to a finger, leaving the distal portion hanging by a single tendon. A brilliant surgeon was able to repair the finger the same day so that there was no loss of bone or, after healing, flesh. And range of motion was totally restored. In that case the Administrative Law Judge found that no report was required and Cal/OSHA did not seek reconsideration of his decision. However, you should be aware that since this definition is not enshrined in Title 8, an inspector or district manager may take a different view.
“Serious permanent disfigurement” has generated few Appeals Board decisions. It is generally understood to mean more than cosmetic scarring. A significant loss of range of motion or grip strength will qualify for this category. For the lawyers reading this, think of the early common law definition of “mayhem:” An injury which renders the victim less effective in combat. The real question here is when does an employer have enough information to answer the question.
Cases dealing with hospitalization for over 24 hours for “other than observation” – as opposed to treatment – have found no reporting required when the employee is held overnight to monitor for complications following head injuries or the like. In cases we have seen the administration of OTC (“over the counter”) drugs like Advil or Tylenol did not qualify as treatment. Nor does continuing hospitalization for a guy with two broken arms until family members can arrive to help him at home.
So, how long does a California employer remain at risk for a reporting violation? Answer: It can be for as long as the employee lives.
Take the following case ripped from the Cal/OSHA Appeals Board’s decisions: An employee suffers a back injury, goes out on workers’ compensation and is treated on an out-patient basis with physical therapy and drugs. Reportable? No.
After six months, during which time the employee voluntarily terminates her employment, her doctor decides that only surgery would cure her. She is hospitalized and released after a few days. The employer’s HR staff is on the ball and updates the OSHA 300 log accordingly, but fails to realize that the injury now qualifies as “serious.” Reportable?
YES, said the Board. In its decision the Board held that the employer has a continuing duty to report injuries and illnesses whenever they slide into one of the categories of “serious.” They reached this decision with straight faces, despite acknowledging that the whole purpose of the rule is to allow Cal/OSHA to investigate for workplace hazards needing immediate abatement.
Bottom line: Few things are ever over, nor always logical, in the world of Cal/OSHA.