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 5^th) and grocery store workers (ranked 7^th) reported more severe injuries than animal slaughtering and processing (ranked 8^th) or highway, street, and bridge construction (ranked 12^th).  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.

In 2010, OSHA issued a proposed rule reducing the permissible exposure level (PEL) for crystalline silica for general industry and construction.  The proposed rule cut the respirable silica PEL from 100 µg/m³  for an 8-hour time weighted average to 50 µg/m³. After public hearings and public comments were submitted on the proposed rule, OSHA finalized the rule and sent the rule to the Office of Management and Budget (OMB) in December 2015.

On March 21, 2016, OMB completed its review of the rule and a final rule is expected to be published in the Federal Register soon.  Additional information from OSHA is expected today and Jackson Lewis will provide updated information when it is available.

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. Last week 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 include two significant departures from the previous guidance:

• 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 for, e.g., small businesses. The maximum fine is now 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, in-patient 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.” Meaning 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.”

To read more, OSHA’s enforcement guidance may be viewed in full here.

Reminder: IF your company is subject to OSHA’s Injury and Illness Recordkeeping and Reporting Requirements, you must post “in a common area where notices to employees are usually posted” OSHA’s Form 300A (summary of job-related illnesses and injuries) for the previous year.  The posting period runs from February 1 through April 30.  If you are unsure of your legal obligations, check OSHA’s Recordkeeping Rule webpage or contact Jackson Lewis directly.