Practical advice

March 4, 2016, the U.S. Occupational Safety and Health Administration (OSHA) issued revised enforcement procedures for its injury and illness reporting provisions, 29 C.F.R. § 1904.39, available at www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=standards&p_id=12783. The consequences of failing to report an injury to OSHA can be significant.

The ramifications of responding to a request from OSHA for information about an employee injury or illness also may be critical. A response that is not drafted properly may lead to an OSHA inspection or citation and may affect civil liability.

Noncompliance penalties

In late 2014, OSHA revised its injury reporting requirements to increase the number of reportable events. As of Jan. 1, 2015, employers must report work-related fatalities, the in-patient hospitalization of any employee, amputations and eye losses. A fatality must be reported within eight hours, and in-patient hospitalizations, amputations and eye losses must be reported within 24 hours.

After the change, reports to OSHA skyrocketed—more than 10,000 incidents were reported in 2015. Nevertheless, OSHA alleges as many as 50 percent of all severe injuries are not being reported. (See www.osha.gov/injuryreport/2015.pdf for more information.)

In response, OSHA quietly issued new procedures for enforcing its reporting rule. Under previous guidelines, the minimum penalty for failing to report a reportable event was $1,000. Based on enforcement procedures OSHA issued March 4, 2016, the minimum penalty is now $5,000. Area directors also are given the discretion to increase the penalty $12,675 to achieve the “necessary deterrent effect.” If OSHA concludes that a violation is “willful” in that the employer knew the injury needed to be reported and did not make a report, the maximum penalty could be as high as $126,749.

OSHA area offices are establishing relationships with local emergency rooms, emergency responders, hospitals and police departments. As a result, OSHA often learns of reportable incidents before the employer reports them. If an employer does not report, OSHA is likely to know about it, and the penalty will be severe.

Additionally, the reporting provisions have resulted in more OSHA inspections, and investigators from the agency might arrive with a “guilty until proven innocent” mentality. After all, an employee has been injured, and OSHA’s mindset when an injury occurs is most often that OSHA violations exist and the employer is to blame. As a result, establishing a plan for dealing with OSHA is critical. Ensuring that management employees understand the company’s rights and how to communicate with OSHA can minimize liability.

Responding to a request for information

The March 4, 2016, procedures also elaborate on OSHA’s protocol for rapid response investigations (RRI). OSHA cannot respond to every reportable event. When OSHA elects not to perform an on-site inspection, the agency may send what is known as an RRI letter asking the employer to investigate the incident and to provide a report describing the cause and abatement measures taken. OSHA sends RRI letters in response to approximately one-third of the reports it receives.

Many employers are reluctant to respond to RRI letters. Admitting to OSHA—in writing, no less—that hazards existed in the workplace and resulted in an injury is unpalatable from OSHA and civil liability standpoints. In response to these concerns, OSHA established a safe harbor provision stating that OSHA would not use the report as a road map to establish any violations but only “as long as employees are not exposed to a serious hazard and the employer is taking diligent steps to correct the condition.”

Responding to an RRI letter often is an exercise in walking a fine line. If the employer provides too little information on how the injury occurred or what steps are being taken to prevent future occurrences, OSHA may determine it needs to conduct an inspection. Provide too much information, however, and the employer may be writing its own citation.

The safe harbor provision does not change these conclusions. The provision applies only “as long as employees are not exposed to a serious hazard.” Reportable events are by definition “serious” in that the hazard caused “death or serious physical harm could result.” OSHA also has a poor track record of honoring pledges not to use an employer’s own findings against it. In 2000, OSHA publicly stated it would not use an employer’s voluntary safety audit findings as a road map to issue citations. However, in a 2013 case, OSHA “made extensive use” of the employer’s third-party safety audit report in issuing citations. In fact, the administrative law judge concluded “[t]he majority of the items at issue were self-identified by [the employer’s report]” and that OSHA acted in “blatant contravention of” its internal policy.

Employers should assume that anything they put in their internal investigation responses OSHA will use either in a future inspection or in ensuing citations and should draft accordingly. Practical tips for preparing responses include:

• Draft carefully. To cite an extreme example, stating that a machine had been unguarded for a substantial time because it was too expensive to install a guard is a recipe for a willful violation. Choose language carefully.
• Stick to the cause. Safety professionals trained in root-cause investigations are taught to dig deep and look for underlying contributing factors that may be not be obvious. That work is important and must continue, but it does not have a place in RRI responses. Instead, the RRI response should focus on the direct cause of the injury and the specific steps the employer took to prevent a similar incident.
• Don’t blame the employee. An injury may result from an employee’s failure to follow procedure. At the same time, OSHA often frowns upon reports that place the blame solely on the employee. Rather than highlighting the employee’s failure, consider amending the procedure to make it clearer or retraining employees on certain aspects of the procedure.

Recent developments

In May 2016, OSHA amended its recordkeeping regulations to include two significant changes: 1) Starting July 1, 2017, establishments with a threshold number of employees must submit certain injury and illness data electronically. 2) Anti-retaliation provisions that implicate discipline for safety violations, postaccident drug testing and safety incentive programs are included.

Under the amended regulations, every establishment with 250 or more employees will be required to submit OSHA 300 (Log of Work-Related Injuries and Illnesses) Logs, 301 (Injuries and Illnesses Incident Report) Forms and 300A (Summary of Work-Related Injuries and Illnesses) summaries electronically every year by uploading them into a database maintained by OSHA. An “establishment” is a single physical location where work is performed. Establishments in industries listed in Appendix A that have 20 or more employees must submit OSHA 300A summaries electronically. OSHA originally stated it would post the data submitted on its website but has since removed that statement from its website.

Establishments meeting the criteria must submit OSHA 300As beginning July 1, 2017. On July 1, 2018, establishments with 250 or more employees will submit OSHA 300As, OSHA 300 Logs and 301 Forms. Establishments with 20 or more employees will submit 300As only.

OSHA missed an internal deadline of Feb. 28, 2017, to complete the online portal to accept the data, and it is not clear whether the Trump administration will dedicate the funds to complete it.

OSHA added Section 1904.35(b)(1)(iv) expressly to prohibit retaliation against employees who report injuries. According to commentary and compliance guidance issued at www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html, employers may not retaliate against employees by ordering unwarranted drug tests after injuries have occurred or by denying employees bonuses through safety incentive programs.

According to OSHA, postaccident drug and alcohol testing is not prohibited. Rather, Section 1904.35(b)(1)(iv) prohibits postaccident testing only when the employee reports an injury and a test is conducted “without an objectively reasonable basis.” The “central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed.” The factors OSHA will consider include whether “other [noninjured] employees involved in the incident” are tested and whether the employer “has a heightened interest in determining if drug use could have contributed to the injury or illness due [to] the hazardousness of the work being performed.”

Safety incentive programs only violate Section 1904.35(b)(1)(iv) to the extent a benefit—“such as a cash prize drawing or other substantial award”—is taken away. “Penalizing an employee simply because the employee reported a work-related injury or illness without regard to the circumstances surrounding the injury or illness is not objectively reasonable and therefore not a legitimate business reason for taking adverse action against the employee.”

The guidance offers two key takeaways for employers. First, OSHA did not specifically address the types of safety incentive programs described in the Aug. 14, 2014, memorandum concerning companies in the Voluntary Protection Program (VPP). The VPP memorandum describes “blended” programs that include a component based on meeting companywide or unitwide injury and illness rate goals. Given that OSHA did not address these types of programs, the assumption is that they do not violate the anti-retaliation provisions in Section 1904.35(b)(1)(iv).

Second, OSHA did not address—at least not explicitly—programs based on more significant injuries and illnesses. A safety incentive program based upon avoiding fatal injuries for a specified time does not violate the anti-retaliation provisions because an employee does not “report” a fatality. Similarly, an employee who breaks a leg and leaves the facility in an ambulance has not reported the injury—the injury is evident. In contrast, an employee who contracts tuberculosis from an exposure at work or a repetitive motion strain that requires surgery could elect to take time off and receive treatment without reporting the injury or illness as work-related. If the employee chooses to report the injury or illness and loses a benefit, such as the opportunity to win $500 in the raffle, the employer has potentially violated Section 1904.35(b)(1)(iv). Programs based on injuries or illnesses resulting in lost time may or may not pass muster depending on whether the employee actually “reports” the injury that leads to the loss of a benefit.

Will the anti-retaliation provision hold up?

Several industry groups filed lawsuits seeking a preliminary injunction of the anti-retaliation provisions. A federal judge in one case denied the request for an injunction but left the merits of the plaintiffs’ case for another day. The plaintiffs ultimately may succeed in demonstrating that OSHA exceeded its statutory authority.

Notwithstanding the merits, the Trump administration may not put up a fight. Earlier this year, OSHA’s counsel filed a motion asking a federal Texas court to delay the litigation so that the parties could talk about a settlement. OSHA also asked to delay a challenge filed in Oklahoma. These legal moves suggest the Trump administration may concede that the plaintiffs are correct: OSHA lacked the authority to promulgate the anti-retaliation provision.

Trump eliminates OSHA’s new Volks Rule

In 2012, the United States Court of Appeals for the District of Columbia Circuit held in AKM LLC dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012), that the six-month statute of limitations in the Occupational Safety and Health Act (OSH Act) applies to recordkeeping violations. OSHA argued that recordkeeping violations are “continuing”—an injury that is recorded incorrectly or not at all Jan. 1, 2015, continues to violate the regulation Jan. 1, 2016. As such, OSHA claimed the correct statute of limitations is six months plus five years from the date of violation because of the regulatory requirement to maintain OSHA 300 Logs for five years. The court disagreed and essentially held that the six-month statute of limitations in the OSH Act applies despite OSHA’s theory. The court also suggested that it would be “madness” for OSHA to attempt to avoid the court’s ruling by amending the recordkeeping regulation to establish a different statute of limitations for recordkeeping violations.

Nevertheless, OSHA did just that by issuing final amendments to the recordkeeping regulation to “clarify” the issue. The questions asked by many included:

• How can OSHA have the authority to change the statute of limitations in the OSH Act?
• Doesn’t the power to change the statute reside with Congress, not OSHA?

President Trump and Congress answered these questions by invalidating OSHA’s amendments through the Congressional Review Act (CRA). April 3, 2017, President Trump signed a CRA resolution, passed by the House March 1 and by the Senate March 22, repealing OSHA’s amended regulation. Pursuant to the CRA, a repealed regulation “may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued.”

As a result, OSHA cannot promulgate similar changes to the recordkeeping regulation. President Trump’s actions do not prohibit OSHA from attempting to relitigate the issue in another appellate court, but there is no evidence that another court would disagree with the District of Columbia Circuit Court’s ruling.

Melissa A. Bailey is a lawyer with Ogletree, Deakins, Nash, Smoak & Stewart P.C., Washington. She focuses her practice on occupational safety and health issues and can be contacted at melissa.bailey@ogletree.com.