On January 1, 2015, the Occupational Safety and Health Administration’s (OSHA) revised regulation for reporting work-related injuries went into effect. Employers are now required to report fatalities as well as the following types of incidents:

• In-patient hospitalizations of one or more employees as a result of work-related incidents must be reported to OSHA within 24 hours. (The former rule required reporting hospitalization of three or more employees within 8 hours.)
• Amputations and the loss of an eye as a result of a work-related incident must now be reported to OSHA within 24 hours. (This is a new provision.)
• Motor vehicle accidents occurring in construction work zones on public streets or highways resulting in a fatality, in-patient hospitalization, amputation, or eye loss must be reported to OSHA. (This is a new provision.)

The revised regulation has been in effect for over a month, and several questions are looming: Will OSHA inspect a work location each time a report is made? If not, what will OSHA do with all of this data? With regard to the first question, OSHA is conducting inspections based on the reports. At the same time, OSHA may have conducted these inspections even in the absence of the revised reporting regulation. Even before the regulation was revised, OSHA developed relationships with emergency medical technicians, ambulance companies, police officers, and emergency physicians, and they routinely called in reports regarding work-related injuries. . As a result, OSHA has routinely conducted accident inspections even when an employer had not been required to report.

How should employers respond to OSHA’s requests for additional information?

What about situations in which OSHA elects not to inspect? Based on communications with some OSHA Area Offices, employers are reporting more injuries than expected—particularly with regard to hospitalizations—and OSHA does not have the resources to inspect each incident. Instead, most Area Offices are asking employers to complete an accident investigation and share the results with OSHA. The request looks somewhat similar to a standard complaint letter, and reads as follows:

• Conduct an incident investigation (see Attachment A)
• Document findings and send corrective actions to [the relevant Area Office]
• Post a copy of this letter where employees can readily review it
• Fax or email a copy of the signed Certificate of Posting (Attachment B) to [the relevant Area Office]

Attachment A is a “non-mandatory investigative tool” that employers may complete in lieu of providing an incident investigation report. Employers are instructed to submit the information by a certain date or risk “an immediate on-site inspection.” (A sample communication from the Dallas Area Office includes this language and shows the information requested in Attachment A.)

How should employers respond to these communications? The best course of action is often to respond the same way an employer would respond to an OSHA complaint letter. Specifically, the employer’s goal is to show that it investigated and implemented satisfactory corrective measures—at the same time, the employer does not want OSHA to be interested enough to inspect the worksite. Employers should also be cognizant of potential civil liability issues. Compiling a detailed root cause report is often not prudent.

Rather than using Attachment A, consider submitting a letter briefly describing how you investigated, what happened, and what corrective steps were taken, such as retraining or fixes to equipment. The letter may be supplemented with the OSHA 301 form and proof of corrective steps.

Employers must recognize that OSHA does not provide assurances that it will not cite an employer on the basis of the information provided. Consider the following (somewhat extreme) example: An employee is hospitalized after falling out of an aerial lift without fall protection. The employer’s investigation reveals that fall protection equipment was never made available to the crew members and that they routinely worked without it. In this type of situation, the employer’s response will need to be carefully drafted in because nothing prevents OSHA from issuing a citation. Moreover, the information provided by the employer could turn a “serious” violation into a “willful” one.

Will the information affect corporate OSHA liability?

At this point, OSHA’s long-term plans (if any) for using the information are unclear. OSHA Assistant Secretary David Michaels originally vowed to publish injury reports—including employers’ names—on OSHA’s website. To date, the agency has not published reports online. At this point, OSHA may not have the bandwidth to publish the large volume of reports that this initiative would require on its website.

Similarly, OSHA may not have the technology to use the data or investigation reports that employers provide to the agency in any kind of strategic way. For example, OSHA may not be able to determine that Company A had a forklift accident resulting in a hospitalization in New Jersey in February and that it had a similar forklift accident in Texas in March. When and if OSHA is able to connect those dots, the Texas incident could result in a “willful” violation because OSHA may allege that Company A should have had a heightened awareness of forklift hazards and that it did not take sufficient company-wide steps to address any issues revealed by the New Jersey accident. If OSHA develops ways to link these types of scenarios, an uptick in willful citations is likely.