As of January 1, 2015, employers have been required to report any work-related amputation, in-patient hospitalization, or loss of an eye to OSHA within 24 hours of the incident. Fatalities must be reported within 8 hours.  OSHA hoped that these requirements would have the following two consequences:

  1. The reporting requirements would allow their resources to be more efficiently and effectively used in compliance assistance and enforcement where workers were at greatest risk;
  2. High-hazard employers would become actively involved in identifying and eliminating serious hazards.

A year later, OSHA has published a report, “Year One of OSHA’s Severe Injury Reporting Program: An Impact Evaluation” authored by Dr. Michaels, Assistant Secretary of Labor for Occupational Safety and Health.  As the title indicates, the report evaluates the first year’s findings based on the OSHA’s experience in the field and the data generated by the employer reports. According Dr. Michael’s report, in 2015, employers reported 10,388 severe injuries which included 7,636 in-patient hospitalizations and 2,644 amputations.  These numbers are representative of federal OSHA states only – they do not include statistics for states that administer their own safety and health programs.

The report breaks down the first year’s data in several ways – hospitalization by industry sector, amputation by industry sector, and the 25 industry groups by NAICS code which reported the largest number of injuries. Combined, the manufacturing and construction industries reported 45% of the hospitalizations and 67% of the amputations.  Interestingly, among the top 25 industry groups reporting the largest number of severe injuries, the postal service (ranked 5th) and grocery store workers (ranked 7th) reported more severe injuries than animal slaughtering and processing (ranked 8th) or highway, street, and bridge construction (ranked 12th).  According to OSHA the findings also showed that “more than 6% of the Severe Injury Reports involved a temporary worker” and revealed “recurring patterns of injuries at certain workplaces.”

The report also states that based on other factors (including injury claim numbers for workers’ compensation) OSHA believes these figures represent significant underreporting – “perhaps 50% or more.” This position is consistent with Dr. Michael’s general belief that employers are under recording work-related injuries and illnesses as well.  OSHA attributes the underreporting to two things.  Firstly, based on the fact that the majority of the reports the Agency received were from large employers, it has concluded that many small and mid-sized companies may not be aware of the new reporting requirements.  OSHA is working on outreach strategies to reach these companies.  Secondly, OSHA believes that some “employers are choosing not to report because they perceive the cost of not reporting to be low.”  To discourage this behavior, OSHA has said that it “is more likely to cite for non-reporting” and it has also raised the unadjusted penalty for not reporting a severe injury from $1,000 to as high as $7,000.  However, the penalty can be even more costly if OSHA discovers that an employer intentionally and willfully chose not to make a timely report.

Overall, OSHA has concluded that the rule is meeting the two intended objectives. The Agency believes that most of the hazards resulting in work-related injuries or illnesses can be prevented and “that when employers engage with OSHA after a worker suffers a severe injury – whether or not a workplace inspection is launched – they are more likely to take action to prevent future injuries.”  In approximately two-thirds of the reports made in 2015, OSHA responded by asking the employers to conduct their own internal investigation, propose abatements, and report back to OSHA.  This process, referred to as a Rapid Response Investigation (RRI), conserves OSHA time and resources and according to OSHA seems to be working effectively.

In approximately one-third of the reports and 58% of amputation reports, OSHA did conduct its own on-site inspection. OSHA believes that but for the new reporting requirements, the Agency would have been unaware of the hazards and therefore unable to work with employers to ensure the safety and health of their employees.  The report notes positive impacts as a result of the inspections it conducted: a lot of employers implemented safety measures which exceeded OSHA requirements; other employers shifted their employee incentives away from low injury reporting to rewarding ideas for injury preventative strategies; and other employers either hired safety and health consultants to conduct safety audits or used OSHA’s on-site consultation services.

In the eyes of OSHA, it is their assessment that the severe injury reporting program is successful. However, it “will continue to evaluate the program and make changes to improve its effectiveness.”  The full report can be read here.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.