New OSHA Standard Impacts Real Estate Industry

Article excerpt

For more than two years, the Occupational Safety and Health Administration (OSHA) has been revising the record keeping standard (1904). After a lengthy comment period and adaptation of some suggestions and changes, it was announced on June 29th of this year that the new standard would go into effect January 1, 2002. As is to be expected, there are quite a few changes to the rule-the old forms have been replaced with new ones, and the stilted "legalese" wording that characterizes most governmental regulations has been discarded in favor of OSHA's new "plain English" approach. However, the most important change is not in the application of the rule itself, but in its altered scope.

True to its predecessor, the new rule maintains a list of "partially exempt" industries-these are business classifications which do not have to comply with any of the standard's requirements other than the unilateral requirement to notify OSHA of any incident involving an employee fatality or the hospitalization of three or more workers. In the previous incarnation of the record keeping rule, all businesses under the very broad real estate "umbrella" were included in the list of partially exempt industries. After reviewing the accident/injury data for the past several years (numbers supplied by the Bureau of Labor Statistics), OSHA modified the list of exempt industries with the result that a significant portion of the real estate industry will suffer from the change.

To differentiate between various industries, OSHA uses Standard Industrial Classification (SIC) codes. SIC codes are a two- to six- digit number that describe classes in increasing detail, with four-digit codes commonly used to represent an industry. For instance, the "family" code 65 represents Real Estate, while the code 6513 represents Operators of Apartment Buildings. While one large group, Real Estate Agents/Managers, has maintained their exempt status, nearly all other property management or leasing business are subject to the new rule. The accompanying table (See Table 1) summarizes the real estate family code and shows the affected/ exempted industries.

As is evident, the modification to the rule basically divides the real estate industry into two basic groups: basic "agents" (i.e., your Century-21 practitioners) on the one hand, and property management, leasing, and development companies on the other. This latter group is no longer classified as "partially exempt", meaning compliance with the requirements of the new standard is mandatory beginning in 2002 (unless they qualify for the second type of exemption-small size).

In addition to the list of partially exempt industries that is included in the record keeping standard, OSHA has waived compliance with the new standard for all businesses employing ten or fewer people at all points during the entire year.

However two important conditions apply to this loophole, as follows:

* "Number of employees" applies to the entire company, not per location. Therefore, a business with three employees at each of four branch locations would be regarded as having twelve employees by OSHA, and thus would be subject to the rule. Companies operating from a common bank account or federal tax ID number are considered a single company.

* Employee turnover has no effect on determining the employee size; the applicable figure is the highest number of employees at any one time.

Therefore, if you employed eleven or more employees at any point during 2001 (or expect to in 2002) and are in the list of "nonexempt industries", the new OSHA record keeping standard applies to you. That's the bad news; the good news is that complying with the rule, while not effortless, can be a relatively simple process.

The purpose of the record keeping regulation is to require companies in affected industries to maintain documentation of workplace incidents resulting in injuries. Therefore, the basic segments of the record keeping process involve using the appropriate forms to record data on injuries determined to be workrelated and recordable; in addition, an annual summary must be posted for employee perusal. …