All private sector employers in the United States with one or more employees are covered by the standards (regulations) promulgated pursuant to the Occupational Safety and Health Act. Those standards are enforced by the Occupational Safety and Health Administration (OSHA).
That coverage includes reporting certain events to OSHA within prescribed time limits. Failing to report these incidents within the defined time limits will garner a $5,000 penalty.
Note that reporting an incident does not assign fault, does not prove the violation of an OSHA rule,and does not establish an em-ployee’s eligibility for workers’ compensation or other benefits.
DUTY TO REPORT
Effective January 1, 2015 OSHA greatly expanded employers’ reporting duties. Now, all employers must report the following events to OSHA:
• All work-related fatalities
• All work-related in-patient hospitalizations of one or more employees
• All work-related amputations
• All work-related losses of an eye
Employers must report:
• Work-related fatalities within eight hours of finding out about them
• Any in-patient hospitalization, amputation, or eye loss within 24 hours of learning about it
Note that, based on state law, employers in California, Oregon, and Washington must report all of the above within eight hours of learning about them. However, since in-patient hospitalization involves being admitted to a hospital for more than 24 hours, reporting a hospitalization can take place within 24 hours of the employer learning about it. Only report overnight hospitalization for medical treatment; do not report hospitalization for observation or for treatment in an emergency room.
Employers do not have to report:
• A fatality or multiple hospitalization incident resulting from a motor vehicle accident if the motor vehicle accident occurs on a public street or highway, and does not occur in a construction work zone
• A fatality or multiple hospitalization incident that occurs on a commercial or public transportation system, e.g., incident if it involves a commercial airplane, train, subway, or bus accident.
• A fatality or catastrophe that occurs more than 30 days after an incident.
Employers must report using one of three options:
• By telephone to the OSHA Office nearest to the site of the incident
• By telephone to the 24-hour OSHA hotline at (800) 321-OSHA (6742)
• On the OSHA website at www.osha.gov
INFORMATION TO REPORT
The employer must provide OSHA the following information when reporting:
• Time and date of accident
• Employer’s name, address, and telephone number
• Name and job title, or badge number of person reporting the accident
• Address of site of accident or event
• Name of person to contact at site of accident
• Name and address of injured employee(s)
• Nature of injury
• Location where injured employee(s) was (were) moved to
• List and identity of other law enforcement agencies present at the site of accident
• Description of accident and whether the accident scene or instrumentality has been altered
LIABILITY DANGER ZONE
Note carefully that the last reporting element, namely describing the incident and whether the accident scene or instrumentality has been altered, is fraught with legal danger.
Whoever undertakes the reporting duty should not make definitive, declaratory statements as to exactly what happened. Why? Because within eight or 24 hours of an incident you simply don’t really know what happened.
Unless and until you (the employer) have investigated the incident you will not know what truly caused the event to occur.
If you make definitive statements like, “the guard on the machine failed and the employee’s finger was cut off,” you have just made an admission against your own interest and have established “a fact.” Let’s say that an investigation reveals that the machine guard was in perfect working order, however, the injured employee actually removed the guard to increase his or her throughput rate in violation of their training and your organization’s rules. You will now have a difficult time convincing OSHA that this later discovered set of facts is what actually happened as opposed to “the fact” that your organization violated OSHA’s machine guarding standard.
In reporting what happened to OSHA you are far, far better off using phrases like:
• “We aren’t really sure. We’ve just started our investigation.”
• “We really don’t know right now. What we’ve been told is that XYZ happened. But, again, we really don’t know right now.”
• “What we’ve been told is XYZ. However, I’m not saying that is what actually happened. We just found out about it and need to investigate.”
Am I an attorney who is advising you to lie? Not at all. I’m advising you to tell the truth. Unless and until you’ve investigated an incident you really, truly, no kidding, don’t know what actually happened.
For example, in my machine-guard example, when I stated that the employee purposely removed the guard you, dear reader, may have immediately assumed that the employer would now be “off the hook.” Not necessarily.
As an investigation progresses facts come out that, taken alone or in small pieces-and-parts, will constantly seem to shift “blame” back and forth between the employer and the employee.
Imagine, if you will, that you discover:
• The employee had been trained to never remove a machine guard, but did it anyway (employee at fault).
• The employee is paid a significant bonus if he/she produces more than X number of widgets a month (employer at fault. The employer’s incentive program puts productivity ahead of safety and encourages employees to “do whatever it takes”).
• The employee’s supervisor has periodically admonished the employee not to remove machine guard (employee at fault).
• The supervisor has directly observed the employee remove the machine guard a number of times, but only periodically admonishes the worker not to do that and has never actually disciplined the person for their actions (employer at fault).
• And so forth…
The point? When reporting a death, in-patient hospitalization, amputation, or eye loss, don’t create liability for yourself by making definitive, declaratory statements about what happened. Tell the truth — you really aren’t sure at that point.
Max Muller, attorney, consultant, and OSHA Authorized Outreach Trainer, is the author of The Manager’s Guide to HR: Hiring, Firing, Performance Evaluations, Documentation, Benefits, and Everything Else You Need to Know, 2d Edition; and The Legal Side of HR Practice. He can be reached at firstname.lastname@example.org.