Miscellaneous Employment Laws
Compliance Partners
OSHA Specialist
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Safety and Protection of the Environment
Occupational Safety and Health Act of 1970 (OSHA)
29 U.S.C. § 651 et seq.; 29 C.F.R. Part 1903.1 et seq.
OSHA deals with the protection of workers in the workplace. The law requires employers to train employees on hazards in the workplace, to provide information to employees, to report occupational injuries and illnesses to the federal government, and to keep records of same, and to provide controls and protective equipment as well.
Posting Requirement
Employers with 11 or more employees must post, from February 1 to April 30, a summary of the total number of job-related injuries and illnesses that occurred in the prior calendar year. The employer is required to post the annual totals of the information contained on the right-hand portion of OSHA Form 300, "Log and Summary of Occupational Injuries and Illnesses". The form is to be displayed wherever notices to employees are usually posted. Access to the entire OSHA Form 300 for an establishment may be requested by employees, former employees and their designated representatives, and OSHA officials. Companies with no injuries and illnesses in the prior year must post the form with zeros on the total line.
Injury Reporting
All employers covered by OSHA must comply with pertinent safety and health standards and must report verbally within eight hours to the nearest OSHA office for all accidents that result in one or more fatalities or in the hospitalization of three or more employees. See 29 C.F.R. § 1904.8. After hours calls to report accidents can be made toll free by calling 1-800-321-OSHA.
OSHA Standard Interpretation August 2, 2004 regarding OSHA 300 Log requirements versus HIPAA privacy requirements.
This is a letter from OSHA providing guidance on how OSHA views the relationship between the OSHA requirement to report confidential health information regarding injured employees versus the HIPAA requirements for employers to protect such information. Note that similar to Internal Revenue Service "Private Letter Rulings," OSHA's position is that a Standard Interpretation letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any situation not delineated within the original correspondence.
"August 2, 2004
Mr. Bill Kojola
Industrial Hygienist
Department of Safety and Health
AFL-CIO
815 Sixteenth St., NW
Washington, DC 20006
Dear Mr. Kojola:
Thank you for your February 27, 2004 letter to the Occupational Safety and Health Administration (OSHA) regarding the Injury and Illness Recording and Reporting Requirements contained in 29 CFR Part 1904. Your letter was forwarded to my office by Richard Fairfax, Director, Directorate of Enforcement Programs. The Division of Recordkeeping Requirements, within my Directorate, is responsible for the administration of the OSHA injury and illness recordkeeping system nationwide. Please excuse the delay in responding to your request.
You state that employers are claiming they must remove all the names from the OSHA 300 Log before providing access in order to comply with the privacy requirements contained in the Health Insurance Portability and Accountability Act (HIPAA). Specifically, you ask OSHA to clarify the recordkeeping requirements contained in 29 CFR Part 1904 vs. the HIPAA requirements.
We do not believe that HIPAA provides a basis for employers to remove employees' names from the Log before providing access. Even if HIPAA is implicated by the employer's disclosure of the OSHA Log, the statue and implementing regulation expressly permit the disclosure of protected health information to the extent required by law. See 45 CFR 164.512(a). This exception for disclosures required by law applies here because the Recordkeeping rule requires that employees, former employees, and employee representatives have access to the complete Log, including employee names, except for privacy concern cases. See 29 CFR 1904.35(b)(2)(iv).
Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep appraised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions please contact the Division of Recordkeeping Requirements at (202) 693-1702.
Sincerely,
Keith Goddard, Director
Directorate of Evaluation and Analysis"
Exit Routes, Emergency Action Plans, and Fire Prevention Plans
Final Rule, 67 Fed. Reg. 67949 (Nov. 7, 2002).
This final rule covers exit routes, emergency action plan, and fire prevention plans. The purpose is to rewrite the rule in clear English to facilitate understanding of the rules. The final rule becomes effective Dec. 9, 2002. While OSHA states the changes do not increase the regulatory burden on employers, others have pointed out that this may not be the case due to the statement in the preamble that OSHA declines to extend recognition to building codes as a means of determining compliance with the Exit Routes Standard. See Keller and Heckman, LLP, OSHA's New Exit Routes Standard, dated 12/31/02.
Fire Safety: OSHA discovered during the review process that some provisions of subpart E were outdated and not consistent with contemporary fire safety options in then current NFPA 101, Life Safety Code, 1994 Edition. Where it was possible to expand permissible employer compliance options without lessening employee safety, the proposal included these expanded options. The 2000 Life Safety Code goes far beyond the requirements of OSHA's standard, both in details of compliance and flexibility for unique workplace conditions. If an employer complies with NFPA 101-2000, OSHA will deem such compliance to be compliance with the OSHA standard. OSHA believes that allowing employers to comply with NFPA 101 as an alternative to the revised Exit Routes standard will provide greater flexibility to employers who want to go beyond OSHA's basic provisions.
Exit Routes: There is a general requirement that all workplaces have at least two exit routes, as far away as practical from each other, to ensure that all employees and other building occupants can exit promptly during an emergency. Where two are insufficient, the employer must have additional exit routes (see NFPA 101-2000 for guidance). The number of exit routes can be reduced to one where the number of employees, the size of the building, its occupancy, or the arrangement of the workplace is such that all employees would be able to evacuate safely during an emergency. In response to comments, OSHA revised the definition of exit route to reflect the acceptability of refuge areas (e.g the route does not necessarily have to lead to the outside. In the final rules, refuge area is defined as follows:
Refuge area means either:
(1) A space along an exit route that is protected from the effects of fire by separation from other spaces within the building by a barrier with at least a one-hour fire resistance-rating; or
(2) A floor with at least two spaces, separated from each other by smoke-resistant partitions, in a building protected throughout by an automatic sprinkler system that complies with Sec. 1910.159 of this part.
Occupational Exposure to Bloodborne Pathogens: Needlesticks and Other Sharps Injuries
Final Rule: 66 Fed. Reg. 5318 (Jan. 18, 2001).
The Needlestick Safety and Prevention Act, signed by President Clinton on November 6, 2000, Pub. L. No. 106-430, mandated specific revisions to the OSHA bloodborne pathogens standard within six months. The Centers for Disease Control and Prevention have estimated that healthcare workers in hospital settings sustain 384,325 percutaneous injuries involving contaminated sharps annually. In light of this hazard, the revised standards require the following:
The annual review and update of the exposure control plan will be required to reflect changes in technology that eliminate or reduce exposure to bloodborne pathogens and document annually consideration and implementation of appropriate commercially available and effective safer medical devices designed to eliminate or minimize occupational exposure.
The employer must implement the safer medical devices that are appropriate, commercially available, and effective.
The employer must solicit input from non-managerial employees responsible for direct patient care who are potentially exposed to injuries from contaminated sharps.
Employers are required to record sharps injuries involving contaminated objects. When the recordkeeping revisions become effective, the employers may use OSHA Form 300 to meet the sharps injury log requirements, provided certain conditions are met. See the OSHA Subject Page for Needle Sticks.
Training Requirements
Numerous training requirements apply in the higher education context:
29 C.F.R. § 1910.1200(h) sets forth the Hazard Communication Training requirements for employees working with hazardous chemicals.
29 C.F.R. § 1910.1450(f) sets forth the requirements for training for Occupational Exposure to Hazardous Chemicals in Laboratories. This separate standard addresses the unique characteristics of the laboratory workplace. OSHA requires a chemical hygiene plan for research labs.
29 C.F.R. § 1910.120 contains the training requirements for Hazardous Substance Spill Training.
29 C.F.R. § 1910.1030(g)(2) contains the training requirements for all employees who could be "reasonably anticipated" as the result of performing their job duties to face contact with blood and other potentially infectious materials. This is known as the Bloodborne Pathogens Standard.
29 C.F.R. § 1910.147(c)(7) contains the training requirements for all employees who come into contact with hazardous energy areas. These are known as lockout/tag out procedures.
29 C.F.R. § 1910.146(g) is Confined Space Entry, which contains procedures to protect employees from the hazards of entry into permit-required confined spaces.
29 C.F.R. § 1910.132(f) contains the requirements for training in the use of Personal Protective Equipment.
29 C.F.R. § 1910.134(e)(5)(i) contains the training requirements for employees on Respirator Protection. A final rule was published on January 8, 1998 at 63 Fed. Reg. 1152. Effective April 8, 1998, this standard will change its designation to 29 C.F.R. § 1910.139, and will apply to tuberculosis. The start up date for the new standard is October 5, 1998.
Hearing Conservation training requirements are set forth at 29 C.F.R. § 1910.95(k)(1). The employer must provide a training program for employees who are exposed to noise at or above an eight-hour time-weighted average of 85 decibels, and must ensure employee participation in the program.
29 C.F.R. § 1910.1001(j)(7) sets forth the requirements for Asbestos Awareness Training. The employer must institute a training program for all employees who are exposed to airborne concentrations of asbestos at or above the permissible exposure limit (PEL) and/or excursion limit.
29 C.F.R. § 1910.332 sets forth the training requirements for those employees who will face a risk of electrical shock that is not reduced to a safe level.
29 C.F.R. § 1910.254(d) sets forth the Arc Welding and Cutting training requirements.
Recordkeeping: Employee medical records must be kept for 30 years, with the exception of first aid records, insurance claims, and records of employees who worked for less than one year, as long as employees are given their records when they leave. See 29 C.F.R. § 1910.20(d)(1). Logs of occupational illnesses and injuries are to be kept for five years from the end of the year to which they refer. See 29 C.F.R. § 1904.6.
Employee medical records must be made available to both current and former employees, or their representatives as set forth in 29 C.F.R. § 1910.1020(e). Complete records of occupational illnesses and injuries must also be kept by employers, and made available to current or former employees or their representatives. See § 1904.2, 1904.7.
Resources:
The OSHA Technical Manual guidance for OSHA officers is a good source for establishing accident prevention programs.
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