Fulton & Barr, Attorneys at Law
Fulton & Barr: The Legal Pad
Sunday, September 21, 2014

32-year-old Luis Rey Rivera Pavia died last year, because his employer willfully ignored safety regulations. He was working as a machine helper for Wire Mesh Sales, LLC in Jacksonville, Fla. on August 15^th 2013, when he dropped a metal bar into a wire-mesh manufacturing machine. He went in to retrieve the bar and a light curtain – sensor that detects a person’s presence inside the machine – was supposed to shut that machine off; however, it was disabled. Unfortunately, Rivera was struck by the part of the machine that feeds the wire in and was killed.

It’s tragic and preventable losses of life, such as Rivera’s that Assistant Secretary of Labor for Occupational Safety and Health (OSHA) Dr. David Michaels exemplifies as reason for the “long overdue” changes to the way fatalities and severe injuries are reported to OSHA.

According to OSHA’s Recordkeeping rule update, there are two significant changes to the way employers must report fatalities and severe injuries beginning in January 2015.

The first change updates the list of industries required to keep OSHA illness and injury records. Some industries are not required to keep these lists, because of the low rate of occupational injury and illness. The list will now be compiled based on the North American Industry Classification System (NAICS) versus the old Standard Industry Classification (SIC). The rule still exempts small business with 10 or less employees on staff at all times during the year from keeping these records.

The second change is that ALL employers must report any work-related fatality to OSHA within 8 hours and any worker with an amputation, hospitalization or loss of an eye within 24 hours of the incident. Right now, employees only have to report fatalities if three or more people are severely injured or killed in the accident and are not required to report all hospitalizations, amputations and/or loss of an eye.

Dr. David Michaels said in a teleconference that this will help them identify that most serious hazardous work places and target compliance assistance.

In Rivera’s case, a recordkeeping rule like this could have saved his life. Two other employees had been severely injured by that machine prior to his death – one with a crushed forearm and another with an amputated arm. If those injuries would have been reported to OSHA, like with the new rule, OSHA would have found the 35 or more violations before Rivera lost his life.

22 of the violations were considered serious, such as disabled shut-off mechanisms, broken pallets cluttering the factory floor and a bathroom sink clogged for months with maggots swimming in the standing water. Wire Mesh Sales, LLC was fined $697,700 and placed in a Severe Violators Enforcement Program for their citations at their Jacksonville plant.

The announcement of the recordkeeping rule change comes on the heels of OSHA’s 2013 annual work-related fatality count. When discussing the count, Dr. Michael’s said, “4,405 on the job dead is 4,405 too many. We can and must do better.”

Dr. Michaels also said when deaths and severe injuries are reported OSHA will use “behavioral economics to ensure workers’ safety.”

When every report comes in the employer will be asked:

1. What caused injury?
2. What does the employer intend to do to address the hazard and prevent further injuries?

All of these records will also be available for the public on OSHA’s website.

Dr. Michael’s hopes “public reporting will nudge employers to not be seen as unsafe to employees.” He also said that the new reporting standards will help OSHA allocate non-fatal resources and better identify companies like Wire Mesh Sales, LLC and prevent fatalities.

As these changes are made in the New Year, Dr. Michaels plans to engage the public in conversation about better ways to prevent deaths and serious injuries while working. These regulation changes are imperative to save lives and create a more safe work environment for Americans.