By Ilana R. Morady and James L. Curtis

Seyfarth Synopsis:  Effective January 1, 2020, Cal/OSHA is revising its injury reporting obligations to be more aligned with the injury reporting obligations under federal OSHA.

As most employers with California operations know, Cal/OSHA has unique injury/illness reporting requirements that differ from the Federal OSHA reporting requirements. These differences are important, and unawareness or confusion about them can lead to liability. On January 1, 2020, changes to Cal/OSHA’s reporting requirements will go into effect. These changes will bring Cal/OSHA’s reporting requirements more in line with Federal OSHA, but differences will still remain.

As background, under Federal law, employers are required to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye. A fatality must be reported within 8 hours and an in-patient hospitalization, amputation, or eye loss must be reported within 24 hours.

Currently, under CalOSHA, employers are required to “immediately” (as soon as practicable but not longer than 8 hours) notify Cal/OSHA in every case involving a death or serious injury or illness.  “Serious injury or illness” means any injury or illness occurring in a place of employment or in connection with any employment which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement. There is an exclusion for injuries or deaths caused by a violation of the Penal Code or a vehicular accident on a public street or highway.

Effective January 1, 2020, the following changes to Cal/OSHA’s rule go into effect:

• The 24-hour minimum time requirement for hospitalizations will be removed. Accordingly, any hospitalization will be reportable, excluding those for medical observation or diagnostic testing.
• Loss of an eye will be included as a reportable injury.
• “Loss of any member of the body” will be changed to “amputation.”
• The exclusion for Penal Code violations will be eliminated. Thus, even injuries at work caused by criminal acts like intentional battery or assault, will be reportable.
• Injuries or illnesses occurring in a construction zone will be included (thereby narrowing the public street or highway exception).

The full text of the new “serious injury or illness” definition is:

Any injury or illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization, for other than medical observation or diagnostic testing, or in which an employee suffers an amputation, the loss of an eye, or any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by an accident on a public street or highway, unless the accident occurred in a construction zone

Also on the horizon is a change to how employers are permitted to report. Currently, employer’s may submit reports by email. However AB 1804, which was signed into law in August 2019, will remove an employer’s ability to report by email to Cal/OSHA when a serious occupational injury, illness or death occurs. Instead, the bill requires that the report be made through an online mechanism established by Cal/OSHA for that purpose. Importantly, however, employers can continue to report by email until CalOSHA establishes the online mechanism – which it has yet to do. Stay tuned.