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OSHA’s “Interim Enforcement Procedures” Prioritize Its Responses to Reported Accidents, Calling for Inspections in Some Cases and Submission of the Employer’s Own Accident Investigation Report in Others

To guide the Occupational Safety and Health Administration in responding to the new requirement to report all in-patient hospitalizations, amputations, and loss of an eye within 24 hours of these events, OSHA has issued its “Interim Enforcement Procedures for New Reporting Requirements under 29 C.F.R. 1904.39.” These Procedures were sent out to the OSHA Regional Administrators and State Designees in anticipation of a large increase in the number of reported accidents in 2015. The Procedures include criteria for “triaging” employers’ reports to determine which reports to respond to with an on-site inspection and which to address through the Agency’s new “Rapid Response Investigation” process. The RRI process requires the reporting employer to conduct and submit the results of its own accident investigation to OSHA. According to OSHA, the Procedures are only an “interim” enforcement plan that the Agency will evaluate and adjust based on its experience this year under the new accident reporting rule, 29 CFR §1904.39.

OSHA Triage of Accident Reports

To determine whether to conduct an on-site inspection or an RRI, the Interim Enforcement Procedures instruct the OSHA Area Offices to sort the employers’ accident reports into one of three categories. Category 1 is for reports that require an on-site OSHA inspection. For Category 2 reports, the Procedures authorize and encourage the OSHA Area Office to conduct an inspection, but the Area Director is allowed to exercise discretion and decide not to conduct an on-site inspection. An on-site inspection is not warranted for Category 3 reports, but the Area Director will require the employer to submit an accident investigation report explaining how the accident occurred and how such incidents can be prevented in the future.

The criteria for the three Categories are as follows:

Category 1

These reported accidents will result in an on-site inspection:

(a) All fatalities and reports of 2 or more in-patient hospitalizations
(b) Any injury involving a worker under 18
(c) Known history of multiple injuries (same or similar events in previous 12 months)
(d) Repeat offenders (history of egregious, willful, failure-to-abate, or repeated citations)
(e) The employer has been placed in OSHA’s Severe Violator Enforcement Program (SVEP), or an OSHA National or Local Emphasis Program (NEP/LEP) applies
(f) Any imminent danger.

Category 2

For these reported accidents, an inspection may be conducted if a number of the questions below can be answered “yes.” This list is not exhaustive, however, and there may be other criteria particular to the incident that could be considered by the OSHA Area Director.

(a) Are employees still being exposed to the conditions underlying the hazards that resulted in the injury or illness?
(b) Was the incident the result of a safety program failure such as Permit-RequiredConfined Spaces (PRCS), Lockout/Tagout (LOTO), Process Safety Management (PSM), etc.?
(c) Was the employee exposed to a serious hazard (i.e., explosive materials, combustible dust, falls or heat)?
(d) Were temporary workers injured or made ill?
(e) Has another government agency (federal, state, or local) made a referral?
(f) Does the employer have prior OSHA inspection history?
(g) Is there a Whistleblower complaint/inspection pending?
(h) Is the employer a Cooperative Program Participant, e.g., VPP, OSHA Strategic partnerships, SHARP or an active Alliance member?
(i) Did the incident involve health issues such as chemical exposures, heat stress, etc.?

Category 3

An on-site inspection will not ordinarily occur if the answers to all of the above Category 2 questions are “no.” As will be discussed in more detail below, the OSHA Area Office will require submission of an accident investigation report in Category 3 cases.

To help make sure that OSHA obtains enough information to triage the incident into the appropriate Category, the Interim Enforcement Procedures include a detailed questionnaire of nearly 30 questions that the OSHA official taking the employer’s report is to go over with the employer during the initial telephone call. See attached Appendix 1 from the Procedures. These questions go into much greater depth about the injured employee, the workplace, and the incident (including whether there have been similar accidents or near misses) than the eight items of information that the OSHA regulation itself requires to be reported. See 29 C.F.R. §1904.39(b)(2).

On-Site OSHA Inspections

If OSHA determines that an on-site inspection of the reporting employer is warranted, the Interim Enforcement Procedures state that the inspection “will be initiated as soon as resources permit and will normally be initiated within five working days” of the employer’s report of the incident. Though not addressed in the Procedures, the scope of the inspection should be limited to the circumstances of the accident that was reported. But even if the inspection starts out being limited to the scope of the reported accident, it can be broadened if the OSHA Compliance Officer sees or hears about any other hazardous or non-compliant condition during the course of the inspection.

Rapid Response OSHA Investigations

If the OSHA Area Director decides not to conduct an on-site inspection, OSHA may initiate a Rapid Response Investigation based on the Area Director’s belief that there is a “reasonable basis that a violation or hazard exists.” The Interim Enforcement Procedures explain that for incidents that have been designated for an RRI, a representative from the OSHA Area Office will call the employer contact identified by the employer when the accident was called in to OSHA. According to a “script” that the Interim Enforcement Procedures provide for the Area Office call, the employer is to be told to “find out what led to the incident and what safety modifications can you make now to prevent future injuries to other workers.” Employers are also to be directed to investigate the “root causes” of the incident.

The OSHA Area Office call is then to be followed up with a faxed letter that asks the employer to “immediately conduct your own investigation into the reported incident and make any necessary changes to avoid further incidents.” The OSHA letter directs the employer to document both its investigation findings and the corrective actions taken in response, and to submit that information to OSHA, either on the employer’s own incident investigation form or on the “Non-Mandatory Incident Investigation” form that OSHA attaches to its letter. Significantly, and as discussed further below, both OSHA’s letter and its attached incident investigation form ask for the employer to investigate and identify the root cause(s) of the accident, which OSHA describes as “both the immediate and the underlying causes of the incident.” OSHA’s form even includes space for witnesses to be identified and for their description of the incident to be documented. In addition, employers must send OSHA documentation showing that the condition that led to the injury has been abated.

According to the Interim Enforcement Procedures, OSHA’s telephone call to the employer should take place within one day of OSHA’s receipt of the employer’s initial accident report, and OSHA’s letter should then require the employer to submit the written results of its investigation of the reported incident within the next five days. OSHA recognizes, however, that the employer may ask for an extension of that time period for “complicated events.” Once the employer has submitted its incident investigation report to OSHA, the Agency will evaluate the report to determine whether to conduct an inspection in order to perform its own investigation and root cause analysis of the incident, to verify that the employer has abated the root cause(s) identified in its report by taking the actions indicated, or simply to investigate further.

Employer Response

In responding to an OSHA RRI, it is important for employers to understand that the accident report submitted to OSHA can be used against them if OSHA subsequently decides to inspect and issue a citation related to the incident. Specifically, the root cause(s) identified in an employer’s report can amount to an admission of a violation, such as failure to conduct required training or repair a faulty safety device, and in some cases could even support characterization of the violation as “willful.” This seems to be exactly the kind of information that OSHA is asking for in the root cause section of the “Non-Mandatory Incident Investigation” form attached to the letter it sends to employers. That form asks the employer to state not only what the root causes were, but to include “why” those causal conditions were present. The root cause section of OSHA’s form gives the following examples and guidance on what should be written:

If safety procedures were not being followed, why were they not being followed? If a machine was faulty or a safety device failed, why did it fail? It is common to find factors that contributed to the incident in several of these areas: equipment/machinery, tools, procedures and policies, training or lack of training, work environment. If you identify these factors, try to determine why these factors were not addressed before the incident.

Root-cause analysis is by definition designed to uncover management’s shortcomings or deficiencies and, if shared with OSHA, provides a blueprint for citations. Obviously, if an employer provides OSHA with an admission that it was not compliant with an OSHA requirement, or worse, knew before the accident that it was not in compliance, the employer has walked itself into a Serious or even Willful citation. And, maybe of even greater concern is that these responses to OSHA are discoverable by plaintiffs’ attorneys seeking to circumvent the workers’ compensation exclusive remedy bar and sue the employer for an employee’s injury. Once the report is provided, it would be extremely difficult for the employer later to contradict its own statement and successfully contest an OSHA citation for the alleged violation.

For this reason, we advise that employers simply respond to OSHA in a letter that addresses the company’s investigation, conclusions, and the corrective action(s) taken. These letters should be very carefully crafted to avoid admissions to the extent possible. We recommend that, in all but the simplest cases, employers carefully review their response letters with upper management and legal counsel prior to submitting them to OSHA, even if an extension of the due date has to be obtained to allow time for such review. In cases of a particularly severe injury, consideration should also be given to retaining an attorney to conduct the accident investigation under the attorney-client privilege or work product doctrine. And finally, in all cases, it would be wise to prepare for the possibility that OSHA will conduct an on-site inspection in response to the employer’s letter.

By David Smith and William K. Principe Atlanta Office of Constangy, Brooks, Smith & Prophete, LLP