Douglas Ehlke Douglas Ehlke

OSHA's New Enforcement Procedures

August 1, 2015

On December 24, 2014, OSHA’s Directorate of Enforcement Programs issued a 20-plus-page memorandum outlining its interim enforcement procedures for new reporting requirements under 29 CFR 1904.39. You may be asking yourself what this means. You also may be wondering whether this was an early holiday present for employers or a lump of coal left in companies’ stockings. While it seems certain that employers will have their hands full dealing with a host of new requests from OSHA for information as well as an almost-certain increase in inspections, the memorandum provides valuable insight into the questions employers likely will be asked and the criteria the agency will consider when deciding whether to visit a facility after an accident.

What are the new reporting requirements set forth in 29 CFR 1904.39? In case you missed it, OSHA now (effective January 1, 2015) requires employers to report the hospitalization of one or more employees (it used to be three), amputations, and/or the loss of an eye in addition to fatalities, which you have always had to report. Anticipating a significant surge in the number of reported incidents, OSHA is rolling out new procedures to provide field guidance on when to launch investigations.

Notably, this memorandum is not posted to OSHA’s website, a departure from past practice which saw the agency publicize and post similar initiatives.

When making your initial report to OSHA in response to a triggering event, you will be expected to provide the following information: the establishment name; the location of the incident; the time of the incident; the type of incident (fatality, hospitalization, amputation or loss of an eye); the number of employees who were so injured or hospitalized; their names; a contact person for the employer; and a description of the incident. Employers can report matters in person, over the phone or online. Keep in mind that you are writing and submitting your own words if you opt for the online reporting mechanism—many employers prefer to make an oral report.

Found at the end of the memorandum are a number of appendices, including a scripted questionnaire to be used when speaking with employers who make oral reports. Among the questions such employers likely will be asked are the age of the injured individual and whether he was your employee or a contract worker. If you have been paying attention to recent OSHA developments you know that the agency recently launched an initiative intended to protect temporary workers, it being the agency’s experience that such individuals often are injured shortly after being assigned to a new worksite, sometimes due to a lack of training. You likely will be asked the age of the employee, because an injury to an employee of a certain age or younger will result in a mandatory inspection. This brings us to the three categories into which all reports will be placed.

Category 1 reports are incidents that must be inspected. They include all fatalities and reports of two or more inpatient hospitalizations; any injury involving an employee younger than 18 years old; incidents involving an employer with a known history of multiple injuries; incidents involving repeat offenders; incidents involving SVEP/NEP/LEP employers; and any report of imminent danger. Frankly, none of these should come as a surprise to an employer familiar with how OSHA operates. Still, it is helpful to know that you can absolutely, positively expect a knock on the door if you fall into one of these scenarios.

Category 2 reports are incidents that may be inspected depending on how an employer responds to certain questions asked during the intake discussion. Although the list of questions set forth in the memorandum is not intended to be exhaustive, multiple “yes” responses most likely will result in an inspection. Among the factors to be considered are whether: 1) the incident resulted from the failure of a safety program such as LOTO, PSM, etc.; 2) the employee was exposed to a serious hazard; 3) temporary workers were injured or made ill; 4) another governmental agency made the referral; 5) the employer has a prior OSHA inspection history; 6) a whistleblower complaint pending; or 7) the employer is a participant in a cooperative program such as VPP or SHARP.

Category 3 reports likely will involve situations where the majority of responses to the above questions were negative. The applicable area office, however, still may launch what OSHA refers to as a rapid response investigation (RRI). Just like the initial intake call, OSHA has prepared a script to be followed during the conversation with an employer when initiating an RRI. As part of the process, OSHA will require a written response and has created what it refers to as a non-mandatory investigative tool, which the employer can fill out and return in lieu of sending a letter. Notably, this tool includes a request for a root cause analysis. Although the sample size at this time is small, many employers prefer to draft their own letter rather than use OSHA’s tool, for obvious reasons.

So, while some employers may view this memorandum and its appendices as yet another example of OSHA making their lives more difficult, I believe that it provides valuable insight into how the agency evaluates reports, clues employers in on the questions they likely will be asked, and gives a good idea of when to expect that knock on the door. Proactive employers would be well-served to ensure that their employee health and safety leaders are fully aware of this development and consider training any and all individuals who routinely handle incident reporting and/or interface with OSHA.

For a copy of this hard-to-locate reporting memorandum, contact us at MF
Aaron Gelb of Vedder Price, Chicago, IL, contributed to this article.
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