On September 18, 2014, OSHA issued a final rule revising its occupational injury and illness recordkeeping and reporting requirements in 29 C.F.R. 1904. Shortly before OSHA’s new injury and illness reporting requirements came into effect last January, OSHA issued Interim Enforcement Procedures for New Reporting Requirements under 29 C.F.R. 1904.39. These interim procedures served as enforcement guidance for Area Offices and compliance officers when issuing citations to employers for failing to report injuries under the new requirements. On March 4, 2016, the agency issued revised enforcement procedures, Revised Interim Enforcement Procedures for Reporting Requirements under 29 C.F.R. 1904.39, due to the “influx of workplace incident reports to OSHA and the field’s experiences with the new reporting requirements.” The revised procedures raise the maximum fine 400% for failing to timely report a work-related severe injury and increase the likelihood for on-site inspections of employers who report a serious injury.
- Maximum Fine Increased for Failing to Report a Reportable Incident Within 24 Hours of Learning of the Incident.Previously, the maximum fine was $1,000 with an option to reduce the fine (e.g., for small businesses.) The maximum fine is now increased 400% and is set at $5,000, with the same reductions still available. This does not, however, change the Area Director’s authority to raise the unadjusted penalty as high as $7,000 if s/he “determines that it is appropriate to achieve the necessary deterrent effect.” Under the revised enforcement procedures, the violation will still be classified as other-than-serious.
- Monitoring Inspections. After an employer has reported a reportable event (fatality, inpatient hospitalization, amputation or loss of an eye), OSHA makes a decision – based on the “category” of the incident – whether to conduct an on-site inspection or a Rapid Response Investigation (RRI). If an RRI is initiated, OSHA sends a letter to the employer, and the employer agrees to conduct its own internal investigation, take steps to abate any hazards, and provide a written response to OSHA. The new guidance provides for monitoring inspections of closed RRIs “based on a randomized selection of closed investigations.” This means that, in some cases, where OSHA informs an employer an RRI is closed, there still remains the potential for an on-site inspection to confirm abatement of the hazardous condition that resulted in the reportable injury. The agency claims this is to ensure accuracy in the reporting and has said that the inspection “will be limited to an inspection of the previously reported condition.” Further, OSHA has said that anything uncovered by the employer in the course of its internal investigation will not be used by the agency to cite the employer provided “employees are not exposed to a serious hazard” and “the employer is taking diligent steps to correct the condition.”
OSHA’s updated enforcement guidance does not change the practice of segregating reports into one of three categories based on factors such as injury severity, the age of the injured workers, whether the workers were temporary and the worksite’s inspection history.
- Category 1 is reserved for reports that require an inspection.
- Category 2 reports may result either in an inspection or an RRI.
- Category 3 reports are RRI only.
The new memorandum additionally offers more guidance for Area Offices to use when deciding whether to launch an initial inspection, such as providing updated questions inspectors may ask when talking with employers. Revised flow charts are also provided to help with understanding the intake process.
Revisions in the memorandum include additional guidance on:
- A safe harbor provision for employers who conduct internal investigations during the RRI.
- Monitoring inspections of closed RRIs.
- Increased penalties for failure to report.
- Updated fill-in Appendices.
- A flow chart for coding.
To read more, OSHA’s enforcement guidance may be viewed in full at http://src.bna.com/daT.
By Stephen A. Burt, MFA, BS
April 2016