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March 17, 2016
OSHA increases fines for failing to report
By Ana Ellington, Legal Editor

Anticipating a large increase in severe injury reports (fatality, inpatient hospitalization, amputation, or loss of an eye), OSHA issued an internal enforcement memorandum on December 24, 2014, to help the field offices manage these reports. It provides new procedures on when to launch an inspection. Recently, OSHA revised its Interim Enforcement Procedures for New Reporting Requirements under 29 CFR 1904.

The memorandum provides valuable insight into additional questions employers may be asked, and outlines the triage process field offices will use to sort through the data and determine whether to open an on-site inspection or initiate a Rapid Response Investigation (RRI).

The revisions to the enforcement procedures include:

  • Increased penalties for failure to report
  • Monitoring inspections of closed RRIs
  • Requiring more information from employers when conducting an RRI

Under 29 CFR 1904.39, employers are required to report to OSHA all inpatient hospitalization, amputations, and loss of an eye within 24 hours on the work-related incident. Fatalities must be reported within 8 hours. Failing to report will now result in an other-than-serious citation with a penalty of $5,000—previously it was $1,000. If the area director determines that it is appropriate to “achieve the necessary deterrent effect” that penalty can be as high as $7,000.

The revised procedures also provide for monitoring inspections of closed RRIs on a “randomized selection” of investigations. Basically, OSHA may still conduct an on-site inspection to ensure the accuracy of the reports and confirm that employees are no longer exposed to serious hazards and that the employer has taken the required steps to correct the hazard.
After the Agency receives an employer report of a severe injury, OSHA will triage each report into three categories:

Category 1—Must be inspected.

  • All fatalities and reports of two or more inpatient hospitalizations;
  • Any injury involving a worker under the age of 18;
  • Employers with a known history of multiple injuries (same or similar events in previous 12 months);
  • Employers considered repeat offenders (history of egregious, willful, failure-to-abate, or repeated citations);
  • Employers in the Severe Violator Enforcement Program;
  • Injuries from hazards covered under National Emphasis Programs or Local Emphasis Programs; and
  • Any report of imminent danger.

If the reported incident does not meet the criteria in Category 1, the area director will have the discretion to determine whether to conduct an on-site inspection based on “Yes” responses to multiple questions.

Category 2—The following list of questions is not exhaustive, and other factors to particular incidents may be considered.

  1. Have the work conditions that resulted in the employer report been corrected? If so, what were the corrective measures taken and how quickly were they implemented?
  2. Can complete abatement of the reported workplace condition be implemented before an inspection is conducted?
  3. Are employees still being exposed to the factors underlying the hazards that resulted in the injury or illness?
  4. Does the employer have work rules procedures that address the hazard? If so, were the rules followed? If not, why not?
  5. How are the work rules/procedures communicated to employees?
  6. Was the incident the result of a safety program failure, such as permit-required confined spaces, lockout/tagout, or process safety management?
  7. Was the employee exposed to a serious hazard (e.g., explosive materials, combustible dust, falls, heat)?
  8. Were temporary workers or other vulnerable populations injured or made ill?
  9. Has another government agency (federal, state, or local) made a referral?
  10. Does the employer have a prior OSHA inspection history?
  11. Is there a whistleblower complaint/inspection pending?
  12. Is the employer a Cooperative Program Participant (e.g., SHARP)?
  13. Did the incident involve health issues, such as chemical exposures or heat stress?

Category 3—Reports will involve situations where the majority of the responses to the Category 2 questions were “No.” The field office will then likely initiate an RRI for Category 3 reports.

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