Last week we attended the ABA Occupational Safety and Health Law Meeting in Naples, Florida. This included representatives from the OSHA Review Commission, the MSHA Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office.

Tom Galassi, Director, Directorate of Enforcement of OSHA, spoke at length on Wednesday about key enforcement initiatives. Galassi reaffirmed OSHA’s continued focus on using the General Duty Clause to cite employers for hazards such as heat, workplace violence, and chemical exposure below OSHA’s established PELs. He also responded to questions about OSHA’s new “non-mandatory” root cause analysis form the Agency is requesting in connection with injury and illness reporting.

Some OSHA area offices are conducting inspections if employers do not submit the new form, which essentially transforms the form into a mandatory obligation if an employer wants to avoid an inspection. Galassi did not confirm that area offices are treating the “non-mandatory” form differently, but simply stressed that the form is in fact non-mandatory.

Employers who report any injury under OSHA’s new reporting rules should be aware that OSHA is de facto treating its request for root cause analysis as mandatory, even though OSHA has not complied with notice and comment rulemaking procedures. The implications of an employer’s response are serious and should be carefully considered.