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Best Practices for Understanding and Navigating OSHA’s New Reporting and Investigation Requirements

The Occupational Safety and Health Administration’s (OSHA) final rule for Occupational Injury and Illness Recording and Reporting Requirements came into effect on January 1, 2015 for Federal-Plan states.  The federal rule expanded the list of severe injuries which must be reported to OSHA.  The previous rule required the employer to inform OSHA within 8 hours of a fatality or three or more inpatient hospitalizations.  Under the new rule, a fatality (within 30 days of the work-related incident) must still be reported within 8 hours of the death (or knowledge of the death).  However, employers will now have a 24-hour window in which to report to OSHA all work-related inpatient hospitalizations that require care and treatment of a single employee, all amputations, and all losses of an eye which occur within 24 hours of the incident. 

Employers must report the work-related fatality, inpatient hospitalization, amputation, or eye loss by calling OSHA’s confidential number (1-800-321-OSHA), contacting the local OSHA Area Office via telephone or in person or filing an electronic submission using OSHA’s (not-yet-available) web portal.  When making a report to OSHA, employers must provide the establishment name, the location of the work-related incident, the time of the work-related incident, the type of reportable event (i.e., fatality, hospitalization, amputation, or loss of an eye), the company representative and contact information, and a brief description of the work-related incident.

State-Plan states are required to implement the new recordkeeping requirements, although they will announce their dates independently.  Some states – North Carolina, Iowa, Tennessee and Indiana – have already adopted and put into effect the new OSHA reporting requirements.  Minnesota, New Mexico, Oregon, Virginia, and Washington are already in the process of adopting the new federal requirements over the next few months.

From January through early March, OSHA received over 2,400 reports of injuries and fatalities under the new requirements from employers.  OSHA is averaging approximately 250 new reports every week.  The significant number of reports has taken up a great of deal OSHA’s resources.  In order to manage the influx, OSHA issued an internal enforcement memorandum to all Regional Administrators, outlining interim enforcement procedures for handling these reports.  The enforcement procedures provide instructions on how OSHA offices can determine whether to open an inspection that will include an actual on-site visit or initiate a “Rapid Response Investigation.”  If a Rapid Response Investigation is deemed to be the best course of action, OSHA a letter to the employer requesting that the employer perform an investigation and report back to OSHA the root cause of the accident and the corrective actions that will be taken to prevent future incidents and protect workers.

Under the enforcement memorandum, all reports meeting one of the following will result in OSHA opening a traditional inspection with an on-site visit:

  • All fatalities and reports of two or more in-patient hospitalizations;
  • Any injury involving a worker under 18;
  • Employers with a known history of multiple injuries (same or similar events in previous 12 months);
  • Employers considered repeat offenders (history of egregious, willful, failure-to-abate, or repeated citations);
  • Employers in the Severe Violator Enforcement Program; and
  • Injuries resulting from hazards covered in theNational Emphasis or Local Emphasis Programs.

If the reported injury does meet the criteria above, the Area Director will have discretion to determine whether to conduct an inspection.  This discretion will be based on the employer’s response to any of the following questions:

  • 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 PRCS, LOTO, PSM, etc.?
  • 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 prior OSHA inspection history?
  • Is there a whistleblower complaint/inspection pending?
  • Is the employer a VPP, OSHA Strategic partnership, SHARP or an active alliance member?
  • Did the incident involve health issues such as chemical exposures, heat stress?

If the answer to several of the above questions is yes, the memorandum states that “the Area Office is encouraged to conduct an inspection.”

For all other reports, OSHA will conduct a Rapid Response Investigation, where the Agency requires the employer to conduct an incident investigation, document findings of the root cause of the accident and identify corrective actions.  OSHA will require the employer to provide a response within five working days from receipt of OSHA’s letter “to confirm abatement/steps that have been taken for abatement.”  Specifically, the Agency wants a written response and supporting documentation, such as “photos, sample results, programs, training records, receipts for equipment, etc.” to establish that the employer has conducted an investigation and abated the hazard.  The memorandum includes a “Non-Mandatory Investigation Tool” 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.”

Through this triage process, 35% of the 2,400 reports received by OSHA in first three months have resulted in an on-site inspection and 45% have resulted in a Rapid Response Investigation.

The likelihood that an employer may need to report to OSHA a covered injury is significantly higher under the new rule that requires reporting of all inpatient hospitalizations of a single employee and amputations.  Inpatient hospitalization is defined broadly to include a formal admission to the in-patient service of a hospital or clinic for care or treatment.  An overnight stay is not required under the new rule.  Similarly, the definition of amputation under the rule is broad and includes any part of the body that has been severed, cut off, amputated (either completely or partially).  Reportable amputations also include fingertip amputations with or without bone loss, medical amputations resulting from irreparable damage, and amputations of body parts that have since been reattached.

Accordingly, employers should develop procedures for handling a major accident and performing a follow-up investigation that may be required by OSHA that address the following:

  • In the event of an accident that results in a reportable injury or death, the accident scene should be secure. Materials and equipment should not be disturbed or moved from their original position to the extent possible until the investigation team has assessed the scene and performed a thorough inspection.  Develop procedures on how the scene will be secure and train employees to not disturb an accident scene.
  • Prior to the accident, identify who will have responsibility for reporting covered injuries and fatalities to OSHA and how such reports will be made. Key management officials should be trained on the new reporting requirements and the reporting procedures.  When making an initial report to OSHA, be careful not to speculate on what occurred or make admissions on the cause of the accidents that may not be accurate or known.
  • Some accidents or emergency events may garner media attention. As a result, identify who will speak on behalf of the company regarding all major accidents, injuries or deaths and develop protocols on how such responses will be vetted by senior leadership or legal counsel.
  • Consider whether to notify and/or involve counsel during any follow-up communications with OSHA or during the root cause investigation. Under certain circumstances, counsel-driven investigations are privileged and protected from disclosure.  In addition, consider whether it is necessary to engage an expert to assist in the investigation and any potential litigation that may arise.
  • As part of an effective investigation, take pictures or video of the scene and any pertinent equipment as soon as possible and before materials or equipment have been disturbed or removed. In addition, gather and review relevant policies, procedures and documents, such as safety and equipment manuals, maintenance and service documents, or purchase orders that may be applicable. Gather and review relevant training presentations and information, such as handouts, sign-in sheets or certifications that demonstrate employees have received appropriate training.  Identify who will serve on an investigation and ensure they understand what information and materials should be reviewed.
  • To perform a thorough and thoughtful inspection, consider whether to request an extension before responding to OSHA’s request for information on the root cause and abatement methods. Also, consider how you will provide the information to OSHA.  Rather than simply complete the “Non-Mandatory Investigation Tool”, employers should describe the investigation it conducted, what the results of that investigation revealed and what corrective actions were or will be taken in a separate letter.

By: Nickole Winnett, Shareholder at Jackson Lewis, P.C.

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