Exclusively from Foa & Son
We reported in last year’s Spring edition about changes in OSHA’s reporting requirements for fatalities and serious injuries. The new standard, effective January 1, 2015, requires that OSHA be notified within eight hours of a fatality and 24 hours of an employer learning of a serious injury.
Last December the agency also introduced a new reporting website giving employers the option of reporting online instead of telephonically to the local OSHA office or the 24-hour hotline. In its first month of use OSHA reported receiving 252 reports online. That compares to the average of 200 to 250 new reports each week in 2015 when the revised rule went into effect and when reports were only made over the phone. Now, however, some attorneys are recommending that employers avoid using the website to report injuries, for fear the information will be used against them.
OSHA does not care what method employers use to report injuries or fatalities, what is most important to them is that employers meet their obligation to report these types of severe injuries within the required time frames. The website does make it more convenient for employers to report such incidents timely, and it’s important that employers do so since OSHA has cited employers for failing to do so. The problem is with the information that must be supplied in order for the online report to be accepted. The website requires more extensive information than is required when phoning OSHA to report such incidents, and employers cannot submit an online report through the website without filling out all mandatory fields. That includes much of the same information that OSHA seeks during its rapid response investigations.
That’s a particular concern given the short reporting time frames. As a practical matter it’s almost impossible for an employer to complete an effective and thoughtful incident investigation in eight hours or even twenty-four hours. Attorneys working in this area counsel caution, saying that it’s premature to commit in writing to some version of an incident before a full investigation has been done. A phone call does not commit an employer in writing to any version, whereas an employer’s own written words on the website are their words, and they are married to them throughout the process.
That’s a concern because OSHA can use the information from the website reports against an employer during a subsequent enforcement action or as a road map for an inspection, and the reports will be accessible to the public under the Freedom of Information Act, meaning unions, competitors or plaintiff lawyers can access them. Information submitted in haste and without careful thought could be used as an admission of fault. Once made, that admission is hard to back away from, even if the employer found out after the initial report that things were not exactly what they thought at the outset.
The reporting rule has broad applicability; all employers under OSHA jurisdiction must report workplace fatalities and serious injuries, even those who are normally exempt from routine OSHA recordkeeping because they have 10 or fewer employees or they operate in low-hazard industries. For those employers, or any who do not normally deal with these types of workplace injuries and who may be unfamiliar with the process and potential repercussions, a phone report may continue to be the best option. Even then, and even on the phone, at this early stage just report the facts that you are absolutely sure are the correct facts, and avoid adding any conjecture, analysis or speculation.
And mind those deadlines