The U.S. Department of Labor Office of Inspector General (OIG) has issued the results of an audit of OSHA's fatality and severe injury reporting program. The main conclusion: OSHA needs to take steps to prevent underreporting of fatalities and injuries, and ensure employers correct identified hazards. The audit bases this conclusion on the following findings:

• OSHA had no assurance employers reported work-related inpatient hospitalizations, amputations, and losses of an eye. Estimates show employers do not report 50 percent or more of severe injuries. Moreover, OSHA did not consistently follow its policy to issue a citation when an employer failed to report work-related fatalities and severe injuries within the specified timeframes.

• For an estimated 87 percent of employer investigations, OSHA lacked justification for its decision to allow employers to perform an investigation, or closed investigations without sufficient evidence employers had abated the hazards that had caused the accident. Furthermore, OSHA did not monitor any employer investigations to ensure accuracy and completeness of the information reported.

By way of background, in January 2015, OSHA made significant changes to employer reporting requirements for work-related fatalities and severe injuries. OSHA's revised regulations require employers to report all work-related fatalities, inpatient hospitalizations, amputations, and losses of an eye within specific timeframes; and encourage employers to investigate these types of incidents and abate the hazards identified to prevent future accidents.

One of the audit's recommendations is for OSHA to conduct inspections on all Category 1 incidents (a fatality, two or more in-patient hospitalizations, emphasis programs [such as amputation prevention], and imminent danger). Is this likely to happen any time soon? Probably not; OSHA simply does not have sufficient personnel to investigate every serious workplace injury.

The decision as to whether the report of a Category 1 injury will result in an OSHA inspection is within the discretion of the Area Director, so the probability of an OSHA inspection following such an injury will depend upon the Region where an employer operates. As a practical matter, when an employer reports a serious injury to OSHA, it should be ready for an OSHA inspector to show up at the facility.

Pro tip: We've said it before, and we'll say it again: a company has the right to have its counsel present for an OSHA inspection. We recommend that company counsel be involved as soon as a serious workplace injury occurs so that counsel can manage OSHA.

Author: Kathleen J. JenningsEmail: This email address is being protected from spambots. You need JavaScript enabled to view it.

Principle

About:

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

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