EHS Administration

The Pitfalls of Reporting Severe Injuries to OSHA

How did you fare in your first year of reporting under the Occupational Health and Safety Administration’s (OSHA) new severe injury reporting rule? According to a report recently released by OSHA, over 10,000 severe injuries were reported. Today we will review the key findings in the report and talk a bit about pitfalls in conducting rapid response investigations (RRIs). Tomorrow we will offer some tips on how to report severe injuries.

Since January 1, 2015, employers have been required to report any severe work-related injury to OSHA within 24 hours. Under the rule, a severe work-related injury is a hospitalization, amputation, or loss of an eye.

Note. Workplace fatalities must still be reported within 8 hours.

According to OSHA, employers reported 10,388 severe injuries in 2015. These injuries included 7,636 hospitalizations and 2,644 amputations. Of the hospitalizations, 26% occurred in the manufacturing sector, and 19% occurred in construction.

Top Industries for Severe Injuries

There were nine industry groups that submitted over 200 severe injury reports.

Industry # of Reports
Foundations, structure, and building exterior contractors 391
Building equipment contractors 343
Support activities for mining (drilling and support services for oil and gas operations) 323
Nonresidential building construction 271
Postal service 229
General medical and surgical hospitals 221
Grocery stores 215
Animal slaughtering and processing 213
Utility system construction 201

 

Not Reporting Can Be Expensive

OSHA feels certain that many severe injuries are not being reported, putting that number at 50% or more. The majority of first-year reports were filed by large employers, which leads OSHA to believe that many small- and mid-sized employers are unaware of the severe injury reporting requirements.

In addition to developing outreach programs, OSHA has increased the penalty for not reporting a severe injury from $1,000 to as much as $7,000. If an employer knew about the requirement but ignored it, OSHA warns that the fine can be much higher and points to a case where an employer was assessed penalties of $70,000 for willfully failing to report.

RRIs and Safe Harbor

The agency claims that the intent of the rule is to allow OSHA to work with employers to identify and eliminate hazards rather than conduct a worksite inspection.

Even given the belief of serious underreporting of severe injuries, OSHA is strained to conduct inspections. As a stop gap to help manage resources, OSHA recently issued an enforcement memorandum that directs OSHA offices to triage each catastrophic report and to respond with an on-site inspection—or an RRI—if certain criteria exist.

As part of the RRI, OSHA will send a letter requesting that the employer conduct its own investigation of the incident. Within 5 working days of OSHA’s request, the company must submit a “root cause analysis” report to OSHA outlining corrective actions.

For employers that conduct RRIs, OSHA has what is referred to as a “safe harbor” provision to limit employer liability. Under the safe harbor provision, if OSHA conducts a monitoring inspection or an inspection for any other reason of a worksite previously subject to an RRI, OSHA will not use the employer’s internal investigation to cite any conditions discovered by the employer during its internal investigation as long as employees are not exposed to a serious hazard and the employer is taking diligent steps to correct the condition.

But how “safe” is the safe harbor provision? Employers that conduct RRIs should have certain concerns about the safe harbor provision. A few to consider are:

  • The safe harbor provision is only internal guidance and not a required part of the severe injury rule.
  • The provision can be disregarded if a “serious” hazard is uncovered.
  • There are no restrictions on other uses of the information uncovered in an RRI, including OSHA uses and outside uses of this information obtained through Freedom of Information Act (FOIA) requests.

3 RRI Don’ts

If you want to avoid an OSHA inspection after you have submitted an RRI, make sure to follow these guidelines.

  1. Don’t simply blame the employee who was hurt.
  2. Don’t fail to conduct a sufficient root cause analysis.
  3. Don’t leave out measures you will take (or have taken) to address the root cause in ways that will effectively reduce or eliminate the possibility of a future similar incident.

Check tomorrow’s Advisor for some tips on reporting severe injuries to OSHA.