NOTE FROM ROBIN: This is the second in a series by David Smith of our Occupational Safety and Health Practice Group on some of the latest developments from the agency. 

Last week, I posted about OSHA’s expected final rule on a public database of workplace injuries and illnesses. While that expected rule would require employers to submit their injury and illness records to OSHA electronically so that they could be posted on a public database, employers are already required to call OSHA when certain severe injuries or illnesses occur, and OSHA plans to make the information it is collecting about those severe cases public as well.

One of the most alarming possibilities under that plan is that employers’ efforts to investigate those severe cases and address the workplace safety issues involved may be used against them.

To recap, OSHA announced last year its plans to post employer reports for some injuries and illnesses that result in hospitalization, amputation, or loss of an eye, and for all fatalities, on the Agency’s public website. The reports would then be readily available for unions, public interest groups, the media, and any other individuals or organizations to use for any purpose.

So far, only the fatality reports have been posted by OSHA, which led some observers to speculate that maybe the Agency had thought better of the plans and decided not to post any of the hospitalization reports.

However, OSHA has recently made it clear that its plans have not changed. Patrick Kapust, Deputy Director of Enforcement Programs, recently reaffirmed the Agency’s intent to make information from those reported cases available to the public.

According to Mr. Kapust, OSHA has been receiving 200 to 250 severe injury/illness reports each week since the reporting rule took effect on January 1 of this year. Thirty-seven percent of those reports have resulted in an on-site inspection to investigate the reported incident, he said.

Mr. Kapust’s comments were made to the National Safety Council Congress in late September, and reported by Bloomberg BNA.

If that pace continues through the rest of the year, OSHA will have conducted somewhere between 3,800 and 4,800 report-based inspections in calendar year 2015. It is clear that those inspections have significantly increased the workload for OSHA’s compliance officers, who in years past have conducted only about 850 inspections to investigate fatalities and catastrophes, which were the only accidents that employers were then required to report.

The severe injury/illness reports that OSHA chooses not to investigate with an on-site inspection are handled by phone and fax under the Agency’s new Rapid Response Investigation process.  According to Mr. Kapust, 49 percent of the reported incidents are handled as RRIs, with the employer being required to complete and submit an incident investigation report to OSHA that includes the root cause of the injury or illness. Mr. Kapust explained that the remaining 14 percent of the severe injury/illness reports were deemed by OSHA to be invalid and not investigated either because the injury/illness was not required to be reported or because OSHA lacked jurisdiction for some reason, such as when the employer is a state government entity or the incident takes place in a state that has its own OSHA plan.

Information from employers’ incident investigation reports that are submitted to OSHA is likely to be included in the Agency’s planned database that will be publicly available on OSHA’s website. Besides being available to the public, the database could also be searched by an OSHA compliance officer engaged in a subsequent inspection to see whether the employer being inspected had previously identified, but failed to adequately address, the root cause of an employee injury or illness. The compliance officer might then use that database information as evidence to support an OSHA citation for serious or even willful violations by the inspected employer.

This should be a serious concern for employers because the root cause submitted by the employer often identifies some fault on the employer’s part. In fact, OSHA seems to expect that the root cause in all reported cases will be identified as the employer’s, and not the worker’s, fault. According to OSHA head Dr. David Michaels,

We tell the employer, “Unless you want us to inspect, we want you to do an incident investigation. Do a root cause analysis to figure out what the causes were, and get back to us.” We may [still] inspect, but if the answer we get back is, “It was the worker’s fault,” we’re going to inspect. Because obviously that employer didn’t get it.

Dr. Michaels’ assertion, however, overlooks the concept of employee misconduct, which has been recognized in case law for many years as an affirmative defense to an OSHA violation. Nonetheless, his remarks put employers on notice that they can expect an inspection whenever they determine that employee misconduct, rather than employer fault, was the root cause of an injury or illness. Employers should carefully explain the basis for an “employee cause” determination in the incident investigation report and get ready for that on-site.