OSHA Issues Enforcement Procedures for New Reporting Requirements

On January 1, the Occupational Safety and Health Administration’s (OSHA) new reporting requirements took effect requiring employers to notify the agency any time there is a workplace fatality, hospitalization, amputation, or eye loss.

The new reporting rules have greatly increased the number of reports the agency receives.

To handle the influx, the agency recently developed and issued “Interim Enforcement Procedures for New Reporting Requirements.” The procedures have not yet been made public; however, they have been reported by the Bureau of National Affairs (see Daily Labor Report, Feb. 18).

Here’s how the new procedures will work:

• Once it first receives an accident report, OSHA will send the employer a new questionnaire. Among other things, the questionnaire will ask employers to determine the cause of the accident and state whether similar accidents have occurred before.
• The agency plans to place each report into one of three categories to determine whether it warrants an onsite inspection or a new Rapid Response Investigation (RRI).

• Category 1: Includes fatalities, hospitalizations of two or more employees, repeat offenders, hazards covered by an emphasis program, imminent dangers, or injuries to minors. These will automatically trigger an onsite inspection.

• Category 2: Includes reports involving two or more of the following. These reports may trigger an onsite inspection at the discretion of the area director.

• Continued exposure to the hazard
• Safety program failure such as lockout or tag out
• Exposure to serious hazards such as falls
• Temporary workers
• Referral from another government agency
• Employers with a prior inspection history
• Employers with a pending whistleblower complaint
• Employers in a cooperative program such as VPP
• Health issues such as chemical exposure or heat stress

• Category 3: Includes reports that do not meet the criteria for Category 2. These reports may trigger the RRI, which is much more involved than the traditional phone and fax inquiry that OSHA now uses. Under an RRI, OSHA will send a letter requesting that the employer conduct its own investigation of the incident and report its findings with supporting documentation. The letter provides a blank investigation report form for employers to use. Some of the questions on the form are worded in such a way that could potentially raise liability issues for employers. As such, employers are highly encouraged to provide relevant information in lieu of completing OSHA’s form.

• Finally, the procedures also call for a new database designed to capture all of the information received from employers. OSHA has not said how this data will be used or whether it will be made available to the public.

Employers facing a reportable incident should keep these considerations in mind:

• Are you actually required to report the incident under the new rule? If you aren’t sure, seek advice from a safety and health professional or legal counsel. As time goes on, OSHA will issue interpretation letters explaining what’s reportable and what’s not.
• Once you’ve sent in a report, assume your facility will be subject to an onsite OSHA inspection. OSHA’s new procedures for deciding which reports warrant an onsite inspection are not absolute. A report that starts as an RRI can quickly change to an onsite inspection. In all cases, get prepared for OSHA’s inspection by addressing any onsite safety and health issues and having your management representative ready to go once OSHA arrives.
• Take care when responding to OSHA’s requests for information. As with any audit or investigation, your responses can be used by OSHA (or others who might obtain OSHA’s information) to hold your company liable or to expand OSHA’s investigation. In a fatality, catastrophic accident or other significant cases, get the advice of legal counsel before responding with anything more than what you are required by law to initially report.
• Although the initial report is required by law, OSHA’s new procedures are only internal enforcement guidelines and are not legally binding on employers.