Most employers are aware of the new Federal OSHA reporting requirements for certain injuries effective January 1st. While previously employers were under a legal obligation to report fatalities (within eight hours) and incidents leading to the hospitalization of three or more employees (within twenty-four hours), the new rule broadens the reporting requirements to include any work-related: (1) in-patient hospitalization; (2) amputation (but not an avulsion); and (3) loss of an eye (all within twenty-four hours). Employers still are required to report fatalities within eight hours. The clock starts to run when an employer learns of a triggering event. Reports are to be made at least verbally to the nearest Area Office (during business hours), or to the National OSHA hotline number (1-800-321-OSHA).
OSHA estimates that it received approximately 1000 such reports in January. While most employers are aware of the new rule and the issuance of it was not particularly controversial, what most employers are not aware of is “what happens after I report?” Previously, reports of a fatality or an incident causing multiple hospitalizations likely would trigger an automatic inspection, but the broader scope of the new rule has resulted in a broader scope of OSHA’s response which may be more troubling than the usual on-site inspection which can be controlled and defended to a significant degree.
Specifically, and as reported in BNA’s Daily Labor Report (2/18/15), OSHA is now sending out a two page questionnaire requesting extensive details about the accident causing the reported injury, including asking employers to detail a “root cause analysis” for the underlying incident. In addition, the employer is instructed to explain whether and why safety procedures were not followed and the reason for any failure of a safety device. The questionnaire concludes with instructing the employer to explain what its recommended abatement (corrective) actions were or will be and the root causes so addressed.
The questionnaire is due back with OSHA within five days with the implication of an inspection if it is not so received (although an extension may be granted for “complicated events,” at least as to the abatement portion). Upon receipt of the questionnaire, a December 24th enforcement memorandum instructs Area Offices to divide responses into three categories. Category I involves:
- a fatality;
- at least two hospitalizations;
- any injury of a worker 17 years old or younger;
- similar events at the worksite involving multiple injuries that occurred in the past year;
- employer history of repeat, willful, failure-to-abate or egregious violations;
- employer previously designated as a “severe violator”;
- employer covered by national or local emphasis program; or
- any imminent danger.
Category I reports are referred for an automatic inspection within five days. Other reports may be deemed Category II based on the answers to the following questions:
- Were temporary workers or “other vulnerable populations” injured or made ill?
- Does the employer participate in a cooperative safety program such as the Voluntary Protection Program or an alliance?
- Are employees still exposed to factors underlying the hazards producing the injury or illness?
- Was the incident the result of failure of a safety program such as lockout/tagout or process safety management?
- Were the employees exposed to a serious hazard such as falls, combustible dust or heat?
- Is there a pending whistle-blower complaint or inspection?
- Does the employer have a history of OSHA inspections?
- Did another government agency make a referral?
- Were health issues such as chemical exposure and heat stress involved?
If the response to two or more of the foregoing inquiries is “yes,” then that employer is also referred for an inspection. All other reports are deemed “Category III” with no inspection; at that point OSHA follows-up with a version of its current Informal Complaint (”phone and fax”) process. That is to say, the employer can still expect a letter from OSHA possibly with additional inquiries and requesting that the employer advise it of what it has done to abate the “root causes” of the accident in question.
The problem with this reporting response process is fairly self-evident as it relates to the OSHA process. An employer is essentially invited to incriminate itself before a compliance officer even arrives on the scene, with the thinly-veiled threat that anything less than a complete response will trigger the inspection that most employers are eager to avoid. Indeed, inartful wording not only could trigger automatic citations but could lead to “willful” and “repeat” citations based on employer admissions.
The collateral effect of such questionnaires (available to third parties through a Freedom of Information Act request once the inspection is closed) goes beyond OSHA ramifications. Employer statements and admissions on the form could easily come back to haunt an employer in state workers’ compensation proceedings, particularly in a Violation of Specific Safety Requirement (VSSR) application. While employer intentional tort liability for industrial injuries and exposures has been curtailed by legislative action, an employer statement or admission on the OSHA questionnaire could nonetheless lead to evidence in support of a “rebuttal presumption” of an intentional tort under Ohio law.
Accordingly, employers are cautioned that they first should verify that they have a reportable incident. If they do, they should not simply fill out the resulting questionnaire and send it back without careful thought and review. Indeed, there is no requirement for the use of the form or responding to every question on it at all — one may wish to consider simply a narrative letter indicating awareness and concern with the incident and, while perhaps suggesting abatement methodology, doing so without any admission of OSHA or other liability.