Effective January 1, 2015, OSHA must be notified anytime there is a workplace fatality, inpatient hospitalization, amputation or eye loss. Along with the new reporting rule, OSHA issued interim internal procedures to deal with the new requirements. These procedures have now been revised in an OSHA Memorandum dated March 4, 2016. They deserve close attention from employers facing a reportable injury or illness. As the old and new procedures make clear, not all reportable injuries and illnesses result in an on-site investigation by OSHA. A top OSHA official recently reported that OSHA received over 10,000 employer reports in 2015, only 38% of which resulted in an on-site inspection. Instead, most reportable injuries and illnesses trigger a “Rapid Response Investigation” (RRI). The RRI consists of detailed information requests to the employer. As part of the RRI, OSHA will ask employers to conduct an internal investigation to discover the reasons for the reportable injury or illness, the hazards involved, and the corrective measures to be taken. A sample “Investigation Tool” is included along with guidance from the National Safety Council on how to conduct and document an internal investigation. The suggested Investigation Tool digs deep into the root causes of the occurrence. Consider, for example, the following instruction in the form:
Instructions: What were the underlying reasons the incident occurred – and are the factors that need to be addressed to prevent future incidents? If safety procedures were not being followed, why were they not being followed? If a machine was faulty or a safety device failed, why did it fail? It is common to find factors that contributed to the incident in several of these areas: equipment/machinery, tools, procedures and policies, training or lack of training, work environment. If you identify these factors, try to determine why these factors were not addressed before the incident.
Information provided in response to questions like these could be potentially damaging. Further, written safety and health audits or incident investigations can be used by OSHA, or others who might obtain OSHA’s files, to hold employers liable . To address these concerns, the new procedures adopt a “safe harbor” provision which purportedly precludes OSHA from citing the employer for violations uncovered as part of the RRI, provided employees are not exposed to a serious hazard, and employers are taking diligent steps to correct the conditions. Here is what the new procedures say:
OSHA recognizes that a critical part of the RRI procedure is an employer’s willingness to conduct their own internal investigation to determine the reasons for the occurrence of a work related incident, to identify related hazards, and to implement corrective measures. Therefore, if OSHA conducts a monitoring inspection or an inspection for any other reason of a worksite previously subject to an RRI, OSHA will not use the employer’s internal investigation to cite condition(s) discovered by the employer during its internal investigation as long as employees are not exposed to a serious hazard and the employer is taking diligent steps to correct the condition.
OSHA’s move to create a “safe harbor” for employer investigation reports is a step in the right direction. In our view, however, concerns still remain:
- The “safe harbor” along with other “requirements” in the new procedures, is not mandatory, nor is it legally binding on OSHA. It is only internal guidance.
- The “safe harbor” will not be recognized if OSHA finds that employees are exposed to a “serious hazard” or the employer is not taking “diligent steps” to correct the condition. What does that mean? How does OSHA determine that?
- The “safe harbor” might preclude citations based upon the employer’s internal investigation report, but how else might OSHA use the report? Internal audits can be a roadmap to a variety of safety and health concerns in the workplace.
- The “safe harbor” only applies to OSHA, not others who might obtain an employer’s investigation report through a Freedom of Information Act request or other legal means.
In most cases, complying with OSHA’s RRI information requests is a better alternative to an on-site inspection, but be careful in responding to information requests, and be especially mindful when preparing written incident investigation reports. We offer the following suggestions:
- If there is a fatality, catastrophic accident or other significant case, get the advice of counsel before responding to OSHA’s requests for information.
- State 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 the 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, practicing in the areas of occupational safety and health law. 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.
©2016 Sherman & Howard L.L.C. March 16, 2016