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Farewell to the ‘Massacre Rule’

Wyoming just took a big step toward improving job safety.

On Friday the Wyoming Occupational Safety and Health Administration commission adopted new reporting rules that require employers to inform state safety regulators of any job-related injury that requires the hospitalization of a worker. Previous requirements dictated reporting an incident only if it resulted in the death of a worker or the hospitalization of at least three workers.

Worker safety advocates in Wyoming criticized the old rules for years, saying it meant a massacre or a death had to occur before anyone learned of serious on-the-job injuries. The change means that Wyoming OSHA will investigate the circumstances behind injuries serious enough to require hospitalization.

It’s an important change. In one of the many legislative hearings in recent years discussing Wyoming’s miserable job-safety record, a Riverton-area oil field worker reported that he had been electrocuted on the job. It turns out that luck was with him and one of his co-workers was a volunteer EMT. Though his heart had stopped beating — as he put it, he died — the EMT successfully revived him. Because he did not die and stay dead, and because three people were not hospitalized, the incident was not reported to OSHA. With no report, no investigator went to the site to determine why the electrocution occurred and what could be done to prevent similar incidents. There has been enough concern about this weak rule nationally that the federal Occupational Safety and Health Administration implemented the change which took effect Jan. 1, 2015.

Wyoming operates its own safety and health program; however, its safety and health rules must be at least as stringent as federal rules. When federal OSHA announced its change in reporting rules, it told businesses located in such State Plan States to “check with their state plan for the implementation date of the new requirements.” Though it encouraged these states to adopt the rules on Jan. 1, federal OSHA conceded that “some may not be able to meet this tight deadline.” Wyoming did not meet the deadline.

The commission finally acted at its Sept. 11 meeting in Casper and adopted the federal injury Reporting and Recordkeeping Rule as an emergency rule. It takes effect immediately. The revised rule requires that employers report all work-related fatalities within 8 hours. It adds the requirement to report all work-related inpatient hospitalizations, all amputations and all losses of an eye within 24 hours.

Approval as an “emergency rule” means the rule is in effect for 120 days, during which time the state can move through its own rulemaking process. OSHA Director Dan Bulkley told the commission Friday that the Office of the Attorney General has committed to promulgating the final rule within 120 days. (The emergency rule could be extended another 120 days, if necessary, Bulkley said.) Commissioner Peter Perakos of Cheyenne called the adoption a “huge step,” but he and other commissioners worried about alerting employers to the new rule. In its motion to adopt the rule, the commission directed state staff to ask the Workers Compensation division to notify employers.

Perakos urged OSHA to take out ads in newspapers in Casper and Cheyenne. OSHA staff noted that the increased reporting means a bigger investigation load for the agency. In fact, since the first of the year, state OSHA has received hospitalization reports from some companies that operate outside Wyoming as well as in-state, Bulkley said.

Wyoming OSHA functions on a tight budget. The small staff of compliance inspectors, the investigators who must examine workplace fatalities (and now injuries that require a hospitalization), suffers from high turnover and lacks experience. OSHA only has nine compliance inspector positions. Two are vacant and two have just been filled by recent college graduates.

Gov. Matt Mead and the legislators who say they don’t want to see workers injured or killed should determine how to ramp up the division’s budget. Protecting the state’s workforce is critical to maintaining a vibrant economy. Meanwhile, we can all bid a not-so-fond farewell to the old massacre rule.

— Dan Neal works as a volunteer with WyCOSH from his home in Casper. WyCOSH — the Wyoming Coalition for Occupational Safety and Health — is a project of the Equality State Policy Center. Published by WyoFile on Sept 15, 2015
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