Despite a 2014 OSHA rule that strengthened provisions that require employers to inform OSHA about work-related fatalities and serious injuries and illnesses, the Department of Labor’s (DOL) Office of Inspector General (OIG) found that OSHA’s data on these incidents are deficient as is its assurance that employers abated the hazards that contributed to the incidents.
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Based on its investigation, the OIG made recommendations it believed will help correct the identified deficiencies. In response, OSHA has agreed to undertake several corrective actions. But other recommendations by the OIG received a cool reception from OSHA. The OIG said no OSHA response to the results of its investigation or its recommendations caused it to change its report.
Revised Rule
Before its revised reporting rule (September 18, 2014, Federal Register (FR)), OSHA’s regulations required employers to report all work-related fatalities and inpatient hospitalizations of three or more employees. Effective January 2015, the revised regulations still required employers to report all work-related fatalities within 8 hours of an incident but were amended to require employers to report all work-related, inpatient hospitalizations, as well as amputations and losses of an eye, within 24 hours.
Evidence of Underreporting
OSHA’s effort to implement the revised rule resulted in employers reporting 4,185 fatalities and 23,282 severe injuries from January 2015 through April 2017. Employers performed 14,834 investigations to evaluate the causes of the injuries. Furthermore, OSHA conducted 10,475 on-site inspections based on employer-reported fatalities and severe injuries.
But the OIG’s investigation indicated that these figures are too low. The investigation was motivated at least in part by a March 2016 report by David Michaels, the former assistant secretary of Labor for Occupational Safety and Health. According to Michaels, during the first year after the revised reporting rule took effect, employers failed to report perhaps 50 percent or more of severe injuries to OSHA.
The OIG also looked at workers’ compensation information for several states, which can be compared with employer reports, and found instances of underreporting. For example, one state found that less than 25 percent of injuries were not reported, while another state estimated that approximately 50 percent were not reported. Moreover, an audit report issued by the Government Accountability Office in April 2016 stated, “the Department of Labor faces challenges gathering data on injury and illness rates for meat and poultry workers because of underreporting and inadequate data collection.”
In its own investigation, the OIG tested a sample of incidents reported from January 1, 2015, to September 30, 2016, focusing on whether employers or OSHA should investigate fatalities and severe injuries and whether employers had abated hazards; the OIG also assessed the adequacy of OSHA’s procedures for identifying unreported injuries.
“We found OSHA did not know the total number of work-related fatalities and severe injuries, and had limited assurance employers abated hazards properly,” the OIG states in its September 13, 2018, report. “As a result, OSHA lacked information needed to target compliance assistance and enforcement efforts effectively, and could not demonstrate employers have identified and eliminated serious hazards.”
The OIG notes that some employers chose not to report because they perceived the cost of not reporting to be low. Also, many small- and midsize employers were unaware of the new requirements during the periods for which the OIG collected reporting data, said the OIG.
Lack of Information
The OIG found that OSHA’s implementation of the revised reporting rule is hampered by the lack of complete information on the number of work-related fatalities and severe injuries, challenges related to identifying underreporting, inconsistent practices for detecting and preventing underreporting, and citations not consistently used as a deterrent.
“We attributed these findings to OSHA not issuing formal guidance and training for detecting and preventing underreporting of work-related fatalities and severe injuries,” writes the OIG. “How to detect and prevent underreporting was left to the discretion of each OSHA regional and area office, resulting in inconsistent practices and effort.”
Moreover, the OIG found that OSHA decreased or eliminated the compliance assistance specialist positions tasked with tracking, conducting, and being the primary contact for outreach activities, resulting in fewer resources for educating employers.
Recommendations
Based on its investigation, the OIG recommended that OSHA:
- Develop formal guidance and train staff on how to detect and prevent underreporting of fatalities and severe injuries.
- Consistently issue citations for late reporting.
- Clarify OSHA’s guidance related to documentation of essential decisions, evidence required to demonstrate employers corrected all identified hazards, and requirements for monitoring employer-conducted investigations.
- Emphasize the necessity to conduct inspections on all Category 1 (the most serious) incidents.
In response, OSHA said it could improve case file documentation to include essential decisions and take steps to implement the monitoring aspect of the program to ensure accuracy in reporting. But OSHA only partly agreed with recommendations regarding issuing citations for late reporting and the necessity to conduct inspections for Category 1 incidents. OSHA also stated that it is not clear what additional measures it could take through formal guidance or training to prevent underreporting absent statutory changes to allow the sharing of information or substantial additional resources devoted specifically to seeking out unreported injuries. Moreover, OSHA stated that an employer is under a legal obligation only to report an event, not to conduct an investigation or submit proof of abatement.
The OIG’s report is available here.