On the front lines with Fisher Phillips:
by Travis Vance and Pamela Williams
What happens if an accident occurs at work, but the safety director or person charged with notifying OSHA of reportable injuries and accidents receives incorrect information about the event? For instance, consider a situation where safety personnel or management receives information that an employee has had a finger amputated or is admitted for in-patient hospitalization and then rushes to meet the statutory deadline by reporting the incident to OSHA, only to later learn that neither the amputation nor the in-patient hospital admission were accurate.
To add insult to injury (figuratively and literally), an OSHA compliance officer shows up, demanding to inspect the worksite. Can you stop the inspection? Probably not.
OSHA requirements regarding injury reports
Generally speaking, companies must record injuries if they result in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid or loss of consciousness (29 C.F.R. § 1904.7(a)).
Companies also must report more significant injuries to OSHA. Fatalities, for example, must be reported to OSHA within eight hours from the time the company becomes aware of the death (29 C.F.R. § 1904.39(a)(1)). When an employee suffers an amputation or loss of an eye, or is admitted to in-patient hospitalization, the company must report the injury to OSHA within 24 hours of becoming aware that the injury is reportable (29 C.F.R. § 1904.39(a)(2)).
To report an injury to OSHA, a company can choose either to call OSHA or to report the injury on OSHA’s website (29 C.F.R. § 1904.39(a)(3)).
OSHA’s authority to conduct an inspection
Under the Occupational Safety and Health Act of 1970 (the OSH Act), OSHA is authorized to conduct two types of workplace inspections. First, OSHA can conduct a programmed inspection according to a general administrative plan based upon neutral criteria. See 29 U.S.C. § 657(a). Second, OSHA can conduct an unprogrammed inspection where there is specific evidence of an existing violation. See 29 U.S.C. § 657(f). See also Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1068 (11th Cir. 1982). Unprogrammed inspections arise from reported accidents and injuries, complaints and referrals.
To conduct an inspection based upon a report of injury, complaint or referral, generally there must be reasonable grounds to believe that an OSH Act violation has occurred or that an imminent danger of death or serious injury exists under Section 8(f)(1) of the OSH Act. Courts have held that it is not enough for OSHA to believe that a hazard may exist; rather, there must be reasonable grounds that a violation of an occupational safety and health standard exists. See United States v. Mar-Jac Poultry, Inc., No. 16-17745, slip op. at 8 (11th Cir. Oct. 9, 2018).
OSHA inspections based on an erroneous report of injury
OSHA does not investigate all reportable injuries. Rather, the agency makes a judgment based upon the information reported to determine whether it believes an OSH Act violation may exist, and therefore an inspection is warranted. If an OSHA inspector shows up at your worksite after you report an injury, it means OSHA has determined that there are reasonable grounds to believe a violation may exist.
In the example at the start of this article, the company learned information indicating that the initial report of injury was incorrect prior to the time an OSHA inspector arrived to conduct an inspection. Despite this fact, it will still be very difficult to prevent OSHA from conducting an inspection to investigate the cause of the injury.
Once OSHA learns that an accident has occurred, regardless of severity, it is unlikely to agree to refrain from a workplace inspection. This may be due in part to the fact that although the severity of the injury may affect citation classification (i.e., serious, other-than-serious, etc.), the possible occurrence of a violation is based on the existence of the injury, as well as information reported to OSHA regarding its cause.
How does a company handle this issue?
While revisions or corrections to OSHA reports may not help companies avoid inspections, companies can take precautionary steps to prevent erroneous reports from occurring in the first place.
First, it is important to remember that companies have 24 hours to make a report to OSHA from the time they know the injury is reportable. The required reporting period does not begin to run immediately when the injury occurs. Therefore, it is important for companies to take the time to investigate and confirm the nature of the injury before hastily (and potentially unnecessarily) reporting the injury to OSHA. By properly reviewing the matter and patiently waiting to have the status of the injury confirmed before reporting the event to OSHA, it is more likely the report will be accurate.
Second, companies should call legal counsel once a potentially reportable injury has occurred. Experienced legal counsel can guide companies through the process of reporting to OSHA and ensure that the report, if necessary, is done in a way to minimize the chances of an inspection. As noted, OSHA will not investigate every report of injury but will make its determination based upon what is said in the report regarding the cause and circumstances of the injury. Experienced legal counsel can assist companies regarding what information is reported to OSHA.
Travis Vance is a partner in the firm’s Charlotte office. He can be reached at firstname.lastname@example.org or 704•778•4164. Pamela Williams is a partner in the firm’s Houston office. She can be reached at email@example.com or 713•292•5622. Visit their website at fisherphillips.com .