The best method to keep OSHA away is to make sure reports are accurate to begin with.
The Occupational Safety and Health Administration (OSHA) doesn’t often do mulligans. Even if an employer later discovers that it filed an injury report by mistake, they shouldn’t expect the agency to cancel a follow-up onsite inspection.
“It is our experience that once the horse is out of the barn—that an accident has occurred, regardless of severity—OSHA is unlikely to agree not to inspect the workplace,” say attorneys David Klass and Travis W. Vance of law firm Fisher Phillips “That is because, while the severity of the injury may affect how a citation is classified (serious, other-than-serious, etc.), whether a violation may exist is based on the fact of injury itself as well as what else the company has reported to OSHA regarding the cause of the injury.”
They cite the example of news of an injury making its way up the chain of command to the safety director, who has been erroneously informed that an employee’s finger was amputated. In trying to adhere to the 24-hour deadline required for filing a report of an amputation with OSHA, the director sends the report, only to learn hours or days later that there was no amputation.
An OSHA inspector then shows up demanding to inspect the worksite. Can you stop the inspection? Probably not, according to Klass and Vance.
Under OSHA regulations, when a fatality occurs, the company must report the fatality to OSHA within eight hours of becoming aware of the fatality. When an employee suffers an amputation or a loss of an eye, or is admitted to in-patient hospitalization, the employer must report the injury to OSHA within 24 hours of becoming aware that the injury is reportable.
In order to report such a serious injury, a company can either call OSHA or report the injury on the agency’s website.
Under federal law, OSHA is authorized to conduct two types of workplace inspections. First, OSHA can conduct a programmed inspection following a general administrative plan based on neutral criteria. Second, it can conduct an unprogrammed inspection any time it believes there is specific evidence of a possible existing violation.
However, courts have held that OSHA must be able to show it has reasonable grounds for believing that a safety and health hazard may exist, or that there exists an imminent danger of death or serious injury. A serious injury report supplies those grounds.
OSHA’s Judgment Call
OSHA does not investigate all reportable injuries. It makes a judgment based upon the information reported to determine whether a violation of federal safety law may exist and an inspection is warranted. “If an OSHA inspector shows up at your worksite after reporting an injury, OSHA has decided it has reasonable grounds to believe a violation may exist,” Klass and Vance point out.
As a result, they say, if a company knows at the time the OSHA inspector shows up that the initial report of injury was incorrect—and that the employee did not receive an amputation or was not admitted to a hospital as an in-patient, for example—it will still be very difficult to prevent OSHA from conducting an inspection to investigate the cause of the injury.
The best defense is to take timely precautions before the chain of events begins to unspool. Companies should take precautionary steps to prevent erroneous reports from occurring in the first place, the lawyers urge.
Remember that companies have 24 hours from the time they know that the injury is reportable to file their report with OSHA. As a result, the clock does not begin to run once the injury occurs, but only once the employer knows that it is reportable.
“Companies should take the time to confirm the nature of the injury before trying to report the injury hastily to OSHA,” Klass and Vance recommend. “If a company patiently waits to have the status of the injury confirmed before reporting the event to OSHA, chances are good the report will be accurate.”
They also stress the importance of employers calling their legal counsel once a potentially reportable injury has occurred. “Experienced legal counsel can guide companies through the process of reporting to OSHA and ensure that the report, if necessary and is done in a way to minimize the chances of an inspection,” they say.
As was explained earlier, OSHA does not investigate every report of injury but will make its determination based on what is said in the report regarding the injury’s cause and circumstances, Klass and Vance note. “Experienced legal counsel can assist companies regarding what information is reported to OSHA.”