WSR 07-24-058

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed December 4, 2007, 6:47 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 07-20-089.

Title of Rule and Other Identifying Information: Accident reporting and investigating, chapter 296-27 WAC, Recordkeeping; chapter 296-37 WAC, Diving; chapter 296-78 WAC, Sawmills; chapter 296-305 WAC, Fire fighting; chapter 296-307 WAC, Agriculture; and chapter 296-800 WAC, Core rules.

Hearing Location(s): Department of Labor and Industries, Room S117, 7273 Linderson Way S.W., Tumwater, WA, on January 10, 2008, at 9:30 a.m.

Date of Intended Adoption: February 4, 2008.

Submit Written Comments to: Kimberly Johnson, P.O. Box 44620, Olympia, WA 98507-4620, e-mail rhok235@lni.wa.gov, fax (360) 902-5619, by January 18, 2008.

Assistance for Persons with Disabilities: Contact Bev Clark by December 31, 2007, (360) 902-5516 or clah235@lni.wa.gov.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: These rules are being amended to rectify inconsistencies in reporting requirements for different industries, and to provide equal protection to all employees.

Reasons Supporting Proposal: All employees will be protected equally, and DOSH rules will be consistent throughout industries.

Statutory Authority for Adoption: RCW 49.17.010, 49.17.040, 49.17.050, and 49.17.060.

Statute Being Implemented: Chapter 49.17 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of labor and industries, governmental.

Name of Agency Personnel Responsible for Drafting: Tracy Spencer, Tumwater, Washington, (360) 902-5530; and Implementation and Enforcement: Stephen M. Cant, Tumwater, Washington, (360) 902-5495.

No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.030 (1)(a) requires a small business economic impact statement only when a rule will "impose more than a minor cost on businesses in an industry." The proposed rule will not translate into more than minor costs for businesses in any industry. The proposed rule simply requires employers to report the in-patient hospitalization of one or more employees, whereas the existing WAC requires this when two or more employees are hospitalized (with the exception of the agriculture industry, where the requirement is currently one or more). The potential costs of this new requirement are purely administrative and fall below the minor cost threshold in the Regulatory Fairness Act (chapter 19.85 RCW).

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Kimberly Johnson, P.O. Box 44620, Olympia, WA 98507-4620, phone (360) 902-5008, fax (360) 902-5619, e-mail rhok235@lni.wa.gov.

December 4, 2007

Judy Schurke

Director

OTS-1179.1


AMENDATORY SECTION(Amending WSR 07-03-163, filed 1/24/07, effective 4/1/07)

WAC 296-27-00103   Partial exemption for employers with ten or fewer employees.   (1) Basic requirement.

(a) If your company had ten or fewer employees at all times during the last calendar year, you do not need to keep injury and illness records unless WISHA, OSHA, or the BLS informs you in writing that you must keep records under this section. However, as required by WAC 296-27-031, all employers covered by the WISH Act must report any workplace incident that results in a fatality or the hospitalization of ((two or more)) any employee((s)).

(b) If your company had more than ten employees at any time during the last calendar year, you must keep injury and illness records unless your establishment is classified as a partially exempt industry under WAC 296-27-00105.

(2) Implementation.

(a) Is the partial exemption for size based on the size of my entire company or on the size of an individual business establishment? The partial exemption for size is based on the number of employees in the entire company.

(b) How do I determine the size of my company to find out if I qualify for the partial exemption for size? To determine if you are exempt because of size, you need to determine your company's peak employment during the last calendar year. If you had no more than ten employees at any time in the last calendar year, your company qualifies for the partial exemption for size.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060. 07-03-163, 296-27-00103, filed 1/24/07, effective 4/1/07. Statutory Authority: RCW 49.17.010, [49.17].040, and [49.17].050. 02-01-064, 296-27-00103, filed 12/14/01, effective 1/1/02.]


AMENDATORY SECTION(Amending WSR 02-01-064, filed 12/14/01, effective 1/1/02)

WAC 296-27-00105   Partial exemption for private employers in certain industries.   (1) Basic requirement.

(a) If your private business establishment is classified in a specific low hazard retail, service, finance, insurance or real estate industry listed in Table 1 you do not need to keep injury and illness records unless WISHA, OSHA, or the BLS asks you to keep the records under WAC 296-27-03105 or 296-27-03107. (Public employers are not included in this exemption, except as indicated in (b) of this subsection.) However, all employers must report to WISHA any workplace incident that results in a fatality or the hospitalization of ((two or more)) any employee((s)) (see WAC 296-800-32005).

(b) If you are a public employer in SIC 821 (elementary and secondary schools) and 823 (libraries), you do not need to keep injury and illness records unless WISHA, OSHA or the BLS asks you to keep the records under WAC 296-27-03105 or 296-27-03107. However, all employers must report to WISHA any workplace incident that results in a fatality or the hospitalization of two or more employees (see WAC 296-800-32005).

(c) If one or more of your company's establishments are classified in a nonexempt industry, you must keep injury and illness records for all of such establishments unless your company is partially exempted because of size under WAC 296-27-00103.

(2) Implementation.

(a) Does the partial industry classification exemption apply only to business establishments in the retail, services, finance, insurance or real estate industries (SICs 52-89)? Yes, business establishments classified in agriculture; mining; construction; manufacturing; transportation; communication, electric, gas and sanitary services; or wholesale trade are not eligible for the partial industry classification exemption.

(b) Is the partial industry classification exemption based on the industry classification of my entire company or on the classification of individual business establishments operated by my company? The partial industry classification exemption applies to individual business establishments. If a company has several business establishments engaged in different classes of business activities, some of the company's establishments may be required to keep records, while others may be exempt.

(c) How do I determine the Standard Industrial Classification code for my company or for individual establishments? You determine your Standard Industrial Classification (SIC) code by using the Standard Industrial Classification manual, Executive Office of the President, Office of Management and Budget. You may contact your local L&I office for help in determining your SIC or visit Department of Revenue's web site, http://dor.wa.gov/reports/Qbrsearch/sic_list.htm.

[Statutory Authority: RCW 49.17.010, [49.17].040, and [49.17].050. 02-01-064, 296-27-00105, filed 12/14/01, effective 1/1/02.]

OTS-1180.1


AMENDATORY SECTION(Amending WSR 07-03-163, filed 1/24/07, effective 4/1/07)

WAC 296-37-575   Recordkeeping requirements.   (1) Recording and reporting.

(a) The employer shall comply with the requirements of chapters 296-27, 296-800, and 296-900 WAC.

(b) The employer shall record the occurrence of any diving-related injury or illness which requires any dive team member to be hospitalized ((for 24 hours or more)), specifying the circumstances of the incident and the extent of any injuries or illnesses.

(2) Availability of records.

(a) Upon the request of the director of the department of labor and industries or his duly authorized designees, the employer shall make available for inspection and copying any record or document required by this standard.

(b) Records and documents required by this standard shall be provided upon request to employees, designated representatives, and the assistant director in accordance with chapter 296-802 WAC. Safe practices manuals (WAC 296-37-530), depth-time profiles (WAC 296-37-540), recording of dives (WAC 296-37-545), decompression procedure assessment evaluations (WAC 296-37-545), and records of hospitalizations (WAC 296-37-575) shall be provided in the same manner as employee exposure records or analyses using exposure or medical records. Equipment inspections and testing records which pertain to employees (WAC 296-37-570) shall also be provided upon request to employees and their designated representatives.

(c) Records and documents required by this standard shall be retained by the employer for the following period:

(i) Dive team member medical records (physician's reports) (WAC 296-37-525) - five years;

(ii) Safe practices manual (WAC 296-37-530) - current document only;

(iii) Depth-time profile (WAC 296-37-540) - until completion of the recording of dive, or until completion of decompression procedure assessment where there has been an incident of decompression sickness;

(iv) Recording dive (WAC 296-37-545) one year, except five years where there has been an incident of decompression sickness;

(v) Decompression procedure assessment evaluations (WAC 296-37-545) - five years;

(vi) Equipment inspections and testing records (WAC 296-37-570) - current entry or tag, or until equipment is withdrawn from service;

(vii) Records of hospitalizations (WAC 296-37-575) - five years.

(d) After the expiration of the retention period of any record required to be kept for five years, the employer shall forward such records to the National Institute for Occupational Safety and Health, Department of Health and Human Services. The employer shall also comply with any additional requirements set forth in chapter 296-802 WAC.

(e) In the event the employer ceases to do business:

(i) The successor employer shall receive and retain all dive and employee medical records required by this standard; or

(ii) If there is no successor employer, dive and employee medical records shall be forwarded to the National Institute for Occupational Safety and Health, Department of Health and Human Services.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060. 07-03-163, 296-37-575, filed 1/24/07, effective 4/1/07; 04-10-026, 296-37-575, filed 4/27/04, effective 8/1/04. Statutory Authority: RCW 49.17.010, [49.17].040, and [49.17].050. 01-11-038, 296-37-575, filed 5/9/01, effective 9/1/01. Statutory Authority: Chapter 49.17 RCW. 94-15-096 (Order 94-07), 296-37-575, filed 7/20/94, effective 9/20/94. Statutory Authority: Chapter 49.17 RCW and RCW 49.17.040, [49.17].050 and [49.17].060. 92-22-067 (Order 92-06), 296-37-575, filed 10/30/92, effective 12/8/92. Statutory Authority: RCW 49.17.040 and 49.17.050. 87-02-002 (Order 86-44), 296-37-575, filed 12/26/86. Statutory Authority: RCW 49.17.040, 49.17.050 and 49.17.240. 81-18-029 (Order 81-21), 296-37-575, filed 8/27/81. Statutory Authority: RCW 49.17.040, 49.17.050, 49.17.240, and chapters 42.30 and 43.22 RCW. 78-10-094 (Order 78-18), 296-37-575, filed 10/2/78.]

OTS-1181.1


AMENDATORY SECTION(Amending WSR 01-11-038, filed 5/9/01, effective 9/1/01)

WAC 296-78-515   Management's responsibility.   (1) It shall be the responsibility of management to establish, supervise, and enforce, in a manner which is effective in practice:

(a) A safe and healthful working environment.

(b) An accident prevention program as required by these standards.

(c) Training programs to improve the skill and competency of all employees in the field of occupational safety and health. Such training shall include the on-the-job instructions on the safe use of powered materials handling equipment, machine tool operations, use of toxic materials and operation of utility systems prior to assignments to jobs involving such exposures.

(2) The employer shall develop and maintain a chemical hazard communication program as required by WAC 296-800-170, which will provide information to all employees relative to hazardous chemicals or substances to which they are exposed, or may become exposed, in the course of their employment.

(3) Management shall not assign mechanics, millwrights, or other persons to work on equipment by themselves when there is a probability that the person could fall from elevated work locations or equipment or that a person could be pinned down by heavy parts or equipment so that they could not call for or obtain assistance if the need arises.

Note: This subsection does not apply to operators of motor vehicles, watchperson or certain other jobs which, by their nature, are singular employee assignments. However, a definite procedure for checking the welfare of all employees during their working hours shall be instituted and all employees so advised.


(4) After the emergency actions following accidents that cause serious injuries that have immediate symptoms, a preliminary investigation of the cause of the accident shall be conducted. The investigation shall be conducted by a person designated by the employer, the immediate supervisor of the injured employee, witnesses, employee representative if available and any other person with the special expertise required to evaluate the facts relating to the cause of the accident. The findings of the investigation shall be documented by the employer for reference at any following formal investigation.

(5) Reporting of fatality or ((multiple)) hospitalization incidents.

(a) Within eight hours after the fatality or probable fatality of any employee from a work-related incident or the inpatient hospitalization of ((two or more)) any employee((s)) as a result of a work-related incident, the employer of any employees so affected shall report the fatality/((multiple)) hospitalization by telephone or in person, to the nearest office of the department or by using the OSHA toll-free central telephone number, 1-800-321-6742.

(i) This requirement applies to each such fatality or hospitalization ((of two or more employees)) which occurs within thirty days of the incident.

(ii) Exception: If any employer does not learn of a reportable incident at the time it occurs and the incident would otherwise be reportable under this subsection, the employer shall make a report within eight hours of the time the incident is reported to any agent or employee of the employer.

(iii) Each report required by this subsection shall relate the following information: Establishment name, location of the incident, time of the incident, number of fatalities or hospitalized employees, contact person, phone number, and a brief description of the incident.

(b) Equipment involved in an incident resulting in an immediate or probable fatality or in the in-patient hospitalization of ((two or more)) any employee((s)), shall not be moved, until a representative of the department investigates the incident and releases such equipment, except where removal is essential to prevent further incident. Where necessary to remove the victim, such equipment may be moved only to the extent of making possible such removal.

(c) Upon arrival of a department investigator, employer shall assign to assist the investigator, the immediate supervisor and all employees who were witnesses to the incident, or whoever the investigator deems necessary to complete the investigation.

(6) A system for maintaining records of occupational injuries and illnesses as prescribed by chapter 296-27 WAC.


Note: Recordable cases include:
(a) Every occupational death.
(b) Every industrial illness.
(c) Every occupational injury that involves one of the following:
(i) Unconsciousness.
(ii) Inability to perform all phases of regular job.
(iii) Inability to work full time on regular job.
(iv) Temporary assignment to another job.
(v) Medical treatment beyond first aid.

All employers with eleven or more employees shall record occupational injury and illness information on forms OSHA 101 - supplementary record occupational injuries and illnesses and OSHA 200 - log and summary. Forms other than OSHA 101 may be substituted for the supplementary record of occupational injuries and illnesses if they contain the same items.

[Statutory Authority: RCW 49.17.010, [49.17].040, and [49.17].050. 01-11-038, 296-78-515, filed 5/9/01, effective 9/1/01. Statutory Authority: Chapter 49.17 RCW. 94-20-057 (Order 94-16), 296-78-515, filed 9/30/94, effective 11/20/94; 91-24-017 (Order 91-07), 296-78-515, filed 11/22/91, effective 12/24/91; 89-11-035 (Order 89-03), 296-78-515, filed 5/15/89, effective 6/30/89. Statutory Authority: RCW 49.17.040, 49.17.050 and 49.17.240. 81-18-029 (Order 81-21), 296-78-515, filed 8/27/81.]

OTS-1182.1


AMENDATORY SECTION(Amending WSR 96-11-067, filed 5/10/96, effective 1/1/97)

WAC 296-305-01501   Injury and illness reports for fire fighters.   (1) Notice of injury or illness.

(a) Whenever an occupational accident causes injury or illness to a fire fighter or other employee, or whenever a fire fighter or other employee becomes aware of an illness apparently caused by occupational exposure, it shall be the duty of such a fire fighter or other employee, or someone on his/her behalf, to report the injury or illness to the employer before the end of his/her duty period but not later than twenty-four hours after the incident.

(b) Exception: In the event that symptoms of an occupational injury or illness are not apparent at the time of the incident, the employee shall report the symptoms to his/her employer within forty-eight hours after becoming aware of the injury or illness.

(c) Within eight hours after the fatality or probable fatality of any fire fighter or employee from a work-related incident or the inpatient hospitalization of ((two or more)) any employee((s)) as a result of a work-related incident, the employer of any employees so affected, shall orally report the fatality/((multiple)) hospitalization by telephone or in person, to the nearest office of the department or by using the OSHA toll-free central telephone number, 1-800-321-6742.

(i) This requirement applies to each such fatality or hospitalization ((of two or more employees)) which occurs within thirty days of the incident.

(ii) Exception: If any employer does not learn of a reportable incident at the time it occurs and the incident would otherwise be reportable under this subsection, the employer shall make a report within eight hours of the time the incident is reported to any agent or employee of the employer.

(iii) Each report required by this subsection shall relate the following information: Establishment name, location of the incident, time of the incident, number of fatalities or hospitalized employees, contact person, phone number, and a brief description of the incident.

(2) Recordkeeping - written reports; all fire service employers shall maintain records of occupational injuries and illnesses. Reportable cases include every occupational death, every occupational illness, or each injury that involves one of the following: Unconsciousness, inability to perform all phases of regular duty-related assignment, inability to work full time on duty, temporary assignment, or medical treatment beyond first aid.

(3) All fire departments shall record occupational injury and illnesses on forms OSHA 101-Supplementary Record Occupational Injuries and Illnesses and OSHA 200-Log summary. Forms other than OSHA 101 may be substituted for the Supplementary Record of Occupational Injuries and Illnesses if they contain the same items.

(4) Each employer shall post an annual summary of occupational injuries and illnesses for each establishment. This summary shall consist of a copy of the year's totals from the Form OSHA No. 200 and the following information from that form: Calendar year covered, company name, establishment name, establishment address, certification signature, title, and date. A Form OSHA No. 200 shall be used in presenting the summary. If no injuries or illnesses occurred in the year, zeros must be entered on the totals line, and the form must be posted. The summary shall be completed by February 1 each calendar year. The summary covering the previous calendar year shall be posted no later than February 1, and shall remain in place until March 1.

[Statutory Authority: RCW 49.17.010, [49.17].050 and [49.17].060. 96-11-067, 296-305-01501, filed 5/10/96, effective 1/1/97.]

OTS-1183.1


AMENDATORY SECTION(Amending WSR 01-23-060, filed 11/20/01, effective 12/1/01)

WAC 296-800-320   Summary.   Your responsibility:

To report and conduct an investigation of certain types of accidents.

You must:

Report the death, or probable death, of any employee, or the in-patient hospitalization of ((2 or more)) any employee((s)) within 8 hours

WAC 296-800-32005

Make sure that any equipment involved in an accident is not moved.

WAC 296-800-32010

Assign people to assist the department of labor and industries

WAC 296-800-32015

Conduct a preliminary investigation for all serious injuries

WAC 296-800-32020

Document the investigation findings

WAC 296-800-32025

Note: Call the nearest office of the department of labor and industries at 1-800-4BE SAFE or call Occupational Safety and Health Administration (OSHA) at 1-800-321-6742, to report the death, probable death of any employee or the in-patient hospitalization of 2 or more employees within 8 hours, after handling medical emergencies.

[Statutory Authority: RCW 49.17.010, [49.17].040, and [49.17].050. 01-23-060, 296-800-320, filed 11/20/01, effective 12/1/01; 01-11-038, 296-800-320, filed 5/9/01, effective 9/1/01.]


AMENDATORY SECTION(Amending WSR 01-23-060, filed 11/20/01, effective 12/1/01)

WAC 296-800-32005   Report the death, probable death of any employee, or the in-patient hospitalization of ((2 or more)) any employee((s)) within 8 hours.   ((You must:

Contact the nearest office of the department of labor and industries in person or by phone at 1-800-4BE SAFE to report within 8 hours of the work-related incident or accident,

A death

A probable death

2 or more employees are admitted to the hospital, or

Contact the Occupational Safety and Health Administration (OSHA) by calling its central number at 1-800-321-6742.

Provide the following information within 30 days concerning any accident involving a fatality or hospitalization of 2 or more employees:

Name of the work place

Location of the incident

Time and date of the incident

Number of fatalities or hospitalized employees

Contact person

Phone number

Brief description of the incident

Note: If you do not learn about the incident at the time it occurs, you must report the incident within 8 hours of the time it was reported to you, your agent, or employee.))
(1) You must report to us within eight hours of an incident that:

Causes a fatal or possibly fatal injury

Causes injury requiring in-patient hospitalization of any employee

To report, contact your nearest labor and industries office by phone or in person, or call the OSHA toll-free hotline, 1-800-321-6742.


EXCEPTION: If you do not learn of a reportable incident when it happens, you must report it within eight hours of learning about the incident.

(2) Your report must include:

Establishment name

Location of the incident

Time of the incident

Number of fatalities, hospitalized employees, or pesticide exposures

Contact person

Phone number

Brief description of the incident

(3) Fatalities or hospitalizations that occur within thirty days of an incident must also be reported.

[Statutory Authority: RCW 49.17.010, [49.17].040, and [49.17].050. 01-23-060, 296-800-32005, filed 11/20/01, effective 12/1/01; 01-11-038, 296-800-32005, filed 5/9/01, effective 9/1/01.]


AMENDATORY SECTION(Amending WSR 01-11-038, filed 5/9/01, effective 9/1/01)

WAC 296-800-32010   Make sure that any equipment involved in an accident is not moved.   You must:

Not move equipment involved in a work or work related accident or incident if any of the following results:

A death

A probable death

((2 or more employees are sent to the hospital)) An employee's hospitalization

Not move the equipment until a representative of the department of labor and industries investigates the incident and releases the equipment unless:

Moving the equipment is necessary to:

♦ Remove any victims

♦ Prevent further incidents and injuries

[Statutory Authority: RCW 49.17.010, [49.17].040, and [49.17].050. 01-11-038, 296-800-32010, filed 5/9/01, effective 9/1/01.]


AMENDATORY SECTION(Amending WSR 01-11-038, filed 5/9/01, effective 9/1/01)

WAC 296-800-32015   Assign people to assist the department of labor and industries.   You must:

Assign witnesses and other employees to assist department of labor and industries personnel who arrive at the scene to investigate the incident involving:

A death

Probable death

((2 or more employees are sent to the hospital.)) An employee's hospitalization

Include:

The immediate supervisor

Employees who were witnesses to the incident

Other employees the investigator feels are necessary to complete the investigation

[Statutory Authority: RCW 49.17.010, [49.17].040, and [49.17].050. 01-11-038, 296-800-32015, filed 5/9/01, effective 9/1/01.]

Washington State Code Reviser's Office