By Rod Smith, Pat Miller and Matt Morrison

As most employers are aware, OSHA’s new reporting requirements took effect January 1, 2015. Now, OSHA must be notified anytime there is a workplace fatality, an in-patient hospitalization, an amputation, or an eye loss. These new reporting rules have greatly increased the number of reports received by OSHA. By way of example, OSHA is seeking a 7% increase in its 2016 budget so that, among other things, it can hire 40 new inspectors to handle the onslaught of new reports, estimated at 50,000-67,700 a year.

To deal with the wave of new reports, OSHA recently issued “Interim Enforcement Procedures for New Reporting Requirements.” To our knowledge, these procedures have not yet been made public, nor are they posted on OSHA’s website. They have, however, been reported in the press. See Bureau of National Affairs, Daily Labor Report, “New OSHA Reporting Rule Enforcement Procedures Raise Employers’ Concerns” (February 18, 2015).

These new procedures pose several pitfalls for employers. This Update will explain how OSHA intends to respond to incident reports and what employers can do to avoid these pitfalls. Here’s how the new procedures will work:

• Once an initial report is received, including information the employer is required to provide, such as date, location, contact person, etc., OSHA will contact the employer for more information using a new questionnaire. Among other things, the questionnaire will ask employers to determine the cause of the accident and state whether similar accidents have occurred before.
• OSHA will then “triage” each report into “Categories 1, 2, or 3” to determine whether it warrants an on-site inspection or a new “Rapid Response Investigation” (RRI).
• “Category 1” reports include fatalities, hospitalizations of two or more employees, repeat offenders, hazards covered by an emphasis program, imminent dangers, or injuries to minors, and will automatically trigger an on-site inspection.
• “Category 2” reports are those that may trigger an on-site inspection at the discretion of the Area Director. Category 2 reports include those involving two or more of the following:
  • Continued exposure to the hazard
  • Safety program failure such as Lockout/Tagout
  • Exposure to serious hazards such as falls
  • Temporary workers
  • Referral from another government agency
  • Employers with a prior inspection history
  • Employers with a pending whistleblower complaint
  • Employers in a cooperative program such as VPP
  • Health issues such as chemical exposure or heat stress
• If a report does not meet the criteria for Category 2, then it is classified “Category 3” and OSHA will open a Rapid Response Investigation (RRI). However, an RRI is much more involved than the traditional “phone and fax” inquiry that OSHA now uses. Under an RRI, OSHA will send a letter requesting that the employer conduct its own investigation of the incident and report its findings, with supporting documentation. The letter provides a blank investigation report, or “Investigative Tool,” form for employers to use. This form asks a number of loaded questions along the lines of “if you weren’t following your safety procedures, why not?” Obviously, such questions raise significant liability concerns, and we encourage employers to consider providing relevant information in lieu of completing OSHA’s form.

The procedures also create a new database which will capture all of the information received from employers. OSHA has not said how this data will be used or whether it will be made available to the public.

Employers facing a reportable incident should keep these considerations in mind:

• Are you even required to report the incident under the new rule? Some employers may choose to over-report incidents, but doing so puts them at risk of an on-site OSHA inspection or an inspection under OSHA’s new RRI. The new reporting rule looks simple, but contains unique definitions and exceptions. For example, is the incident “work-related?” Was the employee admitted to the hospital as an “in-patient?” How does the rule define a reportable “amputation?” If you are not clear on whether the incident is reportable, seek advice from a safety and health professional or counsel. As time goes on, OSHA will be issuing interpretation letters explaining what’s reportable and what’s not.
• Once you have made a report, assume your facility will be subject to an on-site OSHA inspection. OSHA’s new procedures for deciding that some reports do not warrant an on-site inspection are not cast in stone. A report that starts out as an RRI inquiry can quickly change to an on-site inspection. In all cases, get prepared for OSHA’s inspection by addressing any safety and health issues in the facility and having your management representative ready to go once OSHA arrives.
• Be careful responding to OSHA’s information requests, and especially its requests for a written incident investigation. As with any audit or investigation form, your responses can be used by OSHA (or others who might obtain OSHA’s information) to hold your company liable or to expand OSHA’s investigation. In fatality, catastrophic accident or other significant cases, get the advice of counsel before responding to OSHA’s request for information beyond what you are required to initially report. Although the initial report is required by law, OSHA’s new procedures are only internal enforcement guidelines and are not legally binding on employers.
• In answering to OSHA’s requests for information, keep these tips in mind:
  • State the known facts, not opinions or speculation. Speculation or opinions, particularly as to the cause of an accident or the existence of a hazard, are often misinterpreted as admissions as to what actually happened. If cause is only “suspected” or “unknown,” say so. If the instance is still “under investigation,” say so.
  • Avoid placing blame or admitting legal violations. Statements that supervisors violated company rules or committed “OSHA violations” can significantly impact your company’s liability.
  • If a problem is noted, always follow up and document that corrective action has been taken. Almost all safety investigation forms have a space to note recommended or completed corrective action. Failure to take corrective action may be construed by OSHA as willful conduct.
  • Be truthful. A false statement in any safety documentation can be very damaging. Make certain that all information provided to OSHA is carefully reviewed and, if necessary, corrected for accuracy.

Rod Smith, Pat Miller, Chuck Newcom and Matt Morrison are part of Sherman & Howard’s Labor & Employment Law Department. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

Sherman & Howard L.L.C. has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

©2015 Sherman & Howard L.L.C.                                                                                  February 27, 2015