By | J. Brooken Smith
On Tuesday, February 11, 2020, the Kentucky Labor Cabinet proposed changes to its workplace safety rules governing when employers must record and report work-related injuries and illnesses to the state. What do the impending changes mean for employers and employees?
The proposed amendments to 803 KAR 2:180 stem, at least in part, from revisions made last year to the rule’s federal counterpart, 29 C.F.R. § 1904.10. Citing “compelling evidence” that the old rule was causing confusion as to when hearing loss is considered “work-related” – and, therefore, must be recorded – the U.S. Occupational Safety and Health Administration (“OSHA”) clarified that the same rule applies to hearing loss as to other injuries and illnesses: An employee’s hearing loss is considered to be “work-related” if an event or exposure in the work environment either caused or contributed to the hearing loss or significantly aggravated a pre-existing hearing loss.
The move to clarify recording obligations is part of the Trump Administration’s efforts to “remove or revise outdated, duplicative, unnecessary, and inconsistent” workplace safety rules. Responding to concerns voiced by the manufacturing and construction industries, OSHA was quick to add that new language does not create any new obligations. As one of the 28 “State Plans” that are authorized by OSHA to enforce federal workplace safety laws, Kentucky’s OSH program is required to adopt the hearing loss revision to ensure that its program is “at least as effective” as the federal program.
The proposed amendment also adds language defining terms and expressly requiring employers to report employee deaths and hospitalizations resulting from work-related heart attacks. From information that is publicly available, it is unclear what prompted the Labor Cabinet to propose this change, although it, too, appears intended to clarify what is already required by law and should not materially change the regulatory burden on employers.
It should be noted that the amendments are not yet final. In accordance with state law, the public has the right to comment in writing or at a public hearing before they become effective. Parties who wish to submit written comments have until April 30, 2020, to do so. For those who wish to be heard at the public hearing – which is scheduled to be held on April 23, 2020, at 10:00 am at the Cabinet’s office in Frankfort – they should contact the Labor Cabinet at least five (5) business days in advance or the hearing may be cancelled. The proposed amendment must also be reviewed by pertinent legislative committees before it can go into effect.
So, while final adoption is still several months away, it appears that the proposed changes will remove uncertainty from Kentucky’s workplace safety rules, which should benefit employers and employees alike.