Three years after introducing new severe injury reporting requirements that require employers to report any work-related amputation, in-patient hospitalization, or loss of an eye to OSHA within 24 hours of the incident, and fatalities within 8 hours, the Office of the Inspector General (OIG) conducted an audit to determine if OSHA had effectively implemented these new requirements.

According to an OIG report issued on September 13, 2018, between January 2015 and April 2017, 4,185 fatalities and 23,282 severe injuries were reported to OSHA under the new requirements.  Dr. Michaels, the former Assistant Secretary, estimated that at least 50% of reportable fatalities or injuries were not reported.

OIG’s audit set out to answer the question:

Has OSHA effectively implemented its revised fatality and severe injury reporting program?

OIG’s final report totals 24 pages, much of which repeats and emphasizes the same findings.

To answer its question, OIG

  • Tested a “random sample of 50 fatalities and 100 severe injuries”
  • Focused on who should investigate reported cases and whether employers abated hazards
  • Assessed the adequacy of OSHA’s procedures for identifying unreported injuries

The results of the audit led OIG to conclude that OSHA:

  • Took steps to implement the new reporting guidelines, e.g. issued guidance, publicized the changes, sent postcards to employers who had not previously been required to keep records
  • Conducted 10,475 on-site inspections in response to employer-reported incidents while employers conducted 14,834 investigations (known as rapid response investigations)
  • Estimated at least 50% of severe injuries went unreported – however, OIG recognized that OSHA may not have tools to remedy this (e.g. lack of access to state workers’ compensation programs data) and found that employers may not report “because they perceived the cost of not reporting to be low”
  • Was inconsistent in its practices for detecting and preventing underreporting
  • Citations as a deterrent for late reporting or failing to report were used inconsistently despite increasing the unadjusted penalty for not reporting a severe injury from $1,000 to $5,000
  • Did not provide evidence to support decisions for not issuing citations
  • Had no way to confirm that employers abated hazards – guidance states employers “should” rather than “shall” provide documentation of abatement – therefore, OSHA had closed cases without evidence that corrective action had been taken
  • Did not perform required OSHA inspections for 906 cases categorized as “Category 1” which are the most severe, such as fatalities, two or more in-patient hospitalizations
  • Failed to monitor any employer-conducted investigations

OIG’s recommendations to OSHA:

  1. Develop formal guidance and train staff on how to detect and prevent underreporting
  2. Consistently issue citations for late reporting
  3. Clarify some of its guidance
  4. Emphasize need to conduct inspections for all incidents classified as Category 1

OSHA had mixed reactions to OIG’s findings. The Agency agreed that it could improve case file documentation and monitoring to improve accuracy, recognized the need for continued staff training and guidance to ensure consistencies, and agreed Area Directors should justify their decisions.  OSHA pointed out that an employer is only under a legal obligation to report an event – not to conduct an investigation nor provide proof of abatement – and only partially agreed with the recommendations for late reporting and conducting inspections for all Category 1 incidents.

In addition to the findings and recommendations of the OIG audit, another important take away from this audit is that there are a handful of states that are utilizing workers’ compensation data to identify underreporting.  Some states are cross referencing this data and issuing citations to employers for failing to report amputations or hospitalizations.

With the ink barely dry on OIG’s report, it is still too early to see how, or if, changes will be made to OSHA’s severe injury reporting program. We will report any updates as we hear of them.  You can access the full OIG report 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.