Erroneous injury reports still likely to lead to OSHA investigations

March 29th, 2019 by Dakota Software Staff

When a workplace injury occurs, employers are obligated to file an injury report with the Occupational Safety and Health Administration, which may trigger an investigation by the agency.

"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," attorneys David Klass and Travis W. Vance recently told EHS Today. "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."

Rush to notify could lead to false and problematic injury reports

According to OSHA regulations, when a workplace fatality occurs, the employer is required to report the fatality within eight hours of becoming aware of its existence. In the event that an employee suffers an amputation or the loss of an eye, or experiences any sort of accident that leads to in-patient hospitalization, the employer has 24 hours to file an injury report with the agency, beginning the moment the company is made aware that the injury is reportable.

These time constraints could cause a rush to report that ultimately leads to the wrong information being given to OSHA. For example, if the news of an injury is inaccurately relayed to a company's safety director so that he or she is led to believe an employee's finger has been amputated, the director might hurry to report the amputation to OSHA before the 24-hour deadline is met, either by calling the agency directly or filing a report on its website.

Afterwards, the safety director may be made aware of the truth, but this will likely not stop an OSHA inspector from coming to the worksite and demanding an inspection.

The agency is authorized under federal law to conduct two types of workplace inspections: a programmed inspection following a general administrative plan can be conducted based on neutral criteria, and an unprogrammed inspection can be conducted any time OSHA believes there is specific evidence of a possible existing violation.

Though the courts have ruled that OSHA must have reasonable grounds for conducting an investigation based only on its belief that a safety and health hazard or imminent danger of death or serious injury may exist, a report of a serious injury meets those grounds - even if the employer later disputes the details of said report.

Additionally, the agency is not in the habit of providing businesses with advance notification of an inspection. Though a company should be aware it is at risk of one by virtue of filing an injury report, it's still quite possible to be caught unaware by inspections, which have become a more substantial risk for employers since OSHA raised its maximum inspection violation penalty by nearly 80 percent in 2017, from $7,000 for a serious violation to $12,471. For repeat violators, the cost is even more prohibitive.

Agency has discretionary power over investigations

Though OSHA has the grounds to investigate all reportable injuries, it does not look into each and every one. The agency exercises discretion in its choice of investigations, and its determination will ultimately be based on a weighing of the available evidence that a violation of federal safety law may exist and warrant an inspection.

"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 said in the interview.

It will likely be difficult to dissuade an inspector who believes he or she has reasonable grounds to investigate from conducting an inspection, regardless of whether the employer attempts to correct the record regarding an injury that did not occur.

Since it is almost impossible to defend against an inspection once a report has been submitted, the best course of action for employers is to exercise extreme caution when filing OSHA reports for supposed workplace accidents and fatalities, so as to ensure accuracy in reporting.

Though taking too much time to report an accident and consequently missing the deadline could lead to an entirely different problem, EHS professionals should keep in mind that companies are to file their report within 24 hours of becoming aware that the injury is reportable, not within 24 hours of the accident occurring. Therefore, it's best to remember that the clock does not start running the moment an employee is injured, but rather the moment that the employer informed.

"Companies should take the time to confirm the nature of the injury before trying to report the injury hastily to OSHA," Klass and Vance said. "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."

The attorneys also stressed that employers should call their legal counsel for guidance on reporting a relevant injury.

"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 advised.

A company's legal team may also be able to provide guidance on how best to frame the details of the injury report and what information should and should not be included, so as to reduce the chances of OSHA deciding to investigate.

While an employer never wants to appear as if it is not being punctual or entirely forthcoming when reporting an injury to OSHA, companies also do not want to be overenthusiastic in their reporting in a way that risks inaccuracy and ultimately subjects the workplace to an unnecessary inspection by the agency.