Effective January 1, 2015, employers in states with federal Occupational Safety and Health Administration jurisdiction must report to OSHA all work-related fatalities (occurring within 30 days of a work-related incident) within 8 hours of learning of the fatality, and all work-related in-patient hospitalizations, amputations, and losses of an eye within 24 hours of the work-related incident. (For more, see our article, OSHA Makes Significant Revisions to Injury and Illness Reporting Requirements.)

To manage the expected influx of new reports, OSHA’s Deputy Assistant Secretary, Dorothy Dougherty, issued an internal memorandum to all Regional Administrators on December 24, 2014, outlining interim enforcement procedures for the new reporting requirements. This instructs Regional and Area offices on the intake of reports, the input of reports to OSHA’s online database, and the triage of reports that will be inspected and investigated. 

Report Intake

During the initial intake of a report, employers must provide OSHA with the following:

  • Establishment’s name
  • Location of the work-related incident
  • Time of the work-related incident
  • Type of reportable event, i.e., fatality, amputation, in-patient hospitalization, or loss of an eye
  • Name(s) of employee(s) who suffered work-related injury
  • Establishment’s contact person and telephone number
  • Brief description of the work-related incident 

Under OSHA’s recordkeeping regulation (29 CFR § 1904.39), all employers must report this information to OSHA. However, under OSHA’s internal memorandum, employers likely will be asked other questions when making their initial report to OSHA, including:

  • What was the injured employee doing just before he or she was injured? 
  • What tools, equipment, or materials was he or she using?
  • What directly caused the harm to the injured employee?
  • Is the hazard that directly caused the harm to the injured employee still in the workplace?
  • Could it potentially harm other people in the workplace? How many people?
  • What steps have been taken to remove the hazard?
  • Has something like this happened, or almost happened, before in this workplace?

Employers should be cautious when responding. Under the standard’s requirements, employers are not legally obligated to provide such information. As fatalities and certain injuries must be reported shortly after they occur, employers often will not know at that time what “directly caused” the harm to the injured employee. Additionally, information about previous accidents in the workplace can be used against employers in a future OSHA inspection. Employers may wish to inform OSHA that an internal accident investigation is underway in these circumstances. 

Area offices have been instructed to determine if follow-up calls are necessary for employers who make reports through the telephonic hotline or by electronic submission (when that becomes available). Therefore, these employers also may be asked to provide additional information beyond what is required to be reported to OSHA.

Information OSHA receives under the reporting requirements will be entered into a database. Previously, OSHA head Dr. David Michaels said the Agency will make these reports publically available on its website.

Triage 

Depending on the type of reported injury, OSHA’s internal memorandum establishes three categories for determining whether to open an inspection that includes an on-site visit or to initiate a “Rapid Response Investigation” (“RRI”). 

All reports classified as “Category 1” will be inspected. These involve:

  • Fatalities and at least 2 in-patient hospitalizations
  • Injury of a worker under age 18
  • Employers with a known history of multiple injuries (same or similar events in previous 12 months)
  • Employers who are repeat offenders (with a history of egregious violations, willful violations, failure-to-abate, or repeated citations)
  • Employers in the Severe Violator Enforcement Program (SVEP)
  • A national emphasis or local emphasis program

If a reported injury does not fit within Category 1, the Area Director is instructed to ask the employer certain questions to determine whether to conduct an inspection, including:

  • Are employees still being exposed to the factors underlying the hazards that resulted in the injury or illness?
  • Was the incident the result of a safety program failure, such as permit-required confined space (PRCS), lockout/tagout (LOTO), or process safety management (PSM)?
  • Was the employee exposed to a serious hazard (i.e., explosive materials, combustible dust, falls, or heat)?
  • Were temporary workers or other vulnerable populations injured or made ill?
  • Has another government agency (federal, state, or local) made a referral?
  • Does the employer have a prior OSHA inspection history?
  • Is there a whistleblower complaint or inspection pending?
  • Is the employer a Cooperative Program Participant, e.g., a participant in voluntary protection programs (VPP), a strategic partnership, a safety and health achievement recognition program (SHARP), or an active alliance member?
  • Did the incident involve health issues, such as chemical exposures or heat stress?

The memorandum states “the Area Office is encouraged to conduct an inspection” if it receives multiple “yes” responses.

Reports classified as Category 3 will receive an OSHA “Rapid Response Investigation” (RRI). Similar to OSHA’s phone/fax procedures, if OSHA determines an on-site inspection is not necessary, it will send the employer a RRI letter requesting information about the employer’s investigation into the work-related incident. The letter asks the employer to complete the following:

  • Conduct an incident investigation
  • Document findings and corrective actions 
  • Post a copy of the letter where employees can readily review it
  • Fax or email a copy of the signed Certificate of Posting

OSHA is requiring a response within 5 working days “to confirm abatement/steps that have been taken for abatement” (extensions are allowed). This means the Agency wants a written response and supporting documentation, such as “photos, sample results, programs, training records, receipts for equipment, etc.,” to establish the employer has conducted an investigation and abated the hazard. The memorandum includes a “Non-Mandatory Investigation Tool” that will be attached to the letter to “assist [employers] in conducting an effective investigation…in identifying the root causes of the incident and taking the necessary steps to ensure…employees are protected from future injuries.” 

Rather than simply completing the “Non-Mandatory Investigation Tool,” the employer should consider describing in a separate letter the investigation it conducted, the results of that investigation, and the corrective actions taken or will be taken. 

Once OSHA is satisfied with the employer’s response, it will close out the RRI. While responding to these letters is not legally required under OSHA’s standards, the failure to provide a response likely will cause an OSHA on-site inspection. 

A copy of OSHA’s memorandum on “Interim Enforcement Procedures for New Reporting Requirements under 29 C.F.R. 1904.39” can be found here.