New procedures signal OSHA crack down on unreported injuries

On March 4, 2016, the Occu­pational Safety and Health Administration issued new procedures for enforcing revised injury and illness reporting requirements in 29 C.F.R. § 1904.39. Many of the 2014 interim procedures remain unchanged, but now employers will face a minimum penalty of $5,000 for failing to report.

The new procedures also include a so-called “safe harbor” provision that OSHA claims will prevent the agency from using root cause reports that employers submit as the basis for citations. However, the protection in the “safe harbor” is a bit illusory.

Higher penalties

Under the new guidelines, the minimum penalty for failing to report a qualifying workplace injury has been increased to $5,000. The starting penalty under the previous guidelines was $1,000. In special circumstances, OSHA area directors will have the leeway to increase the $5,000 penalty to $7,000 to achieve the “necessary deterrent effect” of a serious citation.

This change is largely in response to OSHA’s perception that many employers are not reporting. In a recent article, “Year One of OSHA’s Severe Injury Reporting Program: An Impact Evaluation,” David Michaels, assistant secretary of labor for OSHA, claimed almost 50% of severe injuries are not being reported.

Michaels went as far as accusing some employers of intentionally failing to report, “because they perceive the cost of not reporting to be low.” In these cases, Michaels warned that employers can be fined up to $70,000 for a willful violation.

The new procedures and Michaels’ threat will no doubt influence many employers to err on the side of reporting, even if the injury at issue does not fall under the new rule because it is not work-related or the severity criteria are not met.

With this in mind, employers should ensure the right personnel and protocols are in place so that OSHA is notified in accordance with the regulation when reportable injuries and illnesses occur.

Safe harbor

The new procedures also state that OSHA will not use an employer’s investigation report as a roadmap to establish violations.

In some cases, OSHA conducts a rapid response investigation (RRI) by asking employers to investigate the incident and provide a report to OSHA describing how the incident happened and any abatement measures the employer implemented. The “safe harbor” provision is triggered when OSHA initiates an RRI and then conducts a follow-up inspection after receiving a written investigation report from an employer.

According to the procedures, “OSHA will not use the employer’s internal investigation to cite a condition(s) discovered by the employer during its internal investigation.”

This policy, however, comes with an important caveat: OSHA will not use the internal investigation to cite the employer “as long as employees are not exposed to a serious hazard and the employer is taking diligent steps to correct the condition.”

It is unclear whether “serious hazard” refers to a preexisting hazard connected to the reportable event or a lingering hazard the employer has failed to abate.

Take it with a grain of salt

Notwithstanding, employers should beware this “safe harbor” for several reasons. First, most OSHA citations are for “serious” violations. Moreover, many (if not all) reportable events will be serious by definition—meaning a substantial probability that death or serious physical harm could result.

Thus, once a serious hazard is implicated, the “safe harbor” provision is off the table and the employer’s own investigation can be used against it.

Second, OSHA has a history of failing to honor its internal policies when it comes to using an employer’s own findings against it.

Since 2000, OSHA has maintained it will not use an employer’s voluntary safety and health audit against it when conducting an inspection. That has not been the case.

For example, in a 2013 case, OSHA “made extensive use” of the employer’s third-party safety audit report when issuing the citations at issue. In fact, the administrative law judge in that case concluded the “majority of the items at issue were self-identified by [the employer’s report]” and that OSHA acted in “blatant contravention of” its internal policy.

Employers should be cautious when conducting mandated RRIs and assume that anything they document can and will be used against them in a subsequent OSHA inspection. OSHA has already demonstrated once before it is willing to depart from its internal policies.

In the new Occupational Safety and Health Law Handbook, 3rd ed. (Bernan Press, 2016), Ogletree Deakins attorneys provide employers with plain-English breakdowns of OSHA recordkeeping requirements (Chapter 5) and the OSHA investigation and inspection process (Chapter 10). Also available as an e-book. For more information, visit www.rowman.com/isbn/9781598886795.