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Anticipating a surge of injury and illness reports as a result of its new reporting rules, OSHA's Directorate of Enforcement Programs issued a 20+ page memorandum late last year outlining its Interim Enforcement Procedures for New Reporting Requirements under 29 CFR 1904.39. While many employers can expect to have their hands full dealing with a host of new requests for information from OSHA, as well as an almost certain increase in the number of inspections, the memorandum provides valuable insight into the questions employers will likely be asked and the criteria the agency will consider when deciding whether to visit your facility after an accident.

Some readers—hopefully not many—may be wondering what the new reporting requirements are that are set forth in 29 CFR 1904.39? In case you missed it, effective January 1, 2015 OSHA requires employers to report the hospitalization of one or more employees (it used to be three), as well as amputations and/or the loss of an eye. The obligation to report a fatality within eight hours remains the same. For the most part, the new reporting requirements are self-explanatory, but there are some gray areas with respect to what constitutes an amputation, particularly when the injury involves a small portion of an employee's fingertip. If faced with such a question, an employer would be well-served to work with counsel and/or a workplace safety consultant before deciding not to report such an injury.

When making an initial report of an injury or illness to OSHA, an employer will be expected to provide the following information: the establishment name, the location of the incident, the time of the incident, the type of incident (fatality, hospitalization, amputation, or loss of an eye), the number of employees who were so injured or hospitalized, their names, a contact person for the employer and a description of the incident. Employers can report matters in person, over the phone or online. Employers should consider the fact that their own (written) words may be used against them if they opt for the online reporting mechanism; as such, many employers prefer to make an oral report.

Found at the end of the memorandum are a number of appendices, including a scripted questionnaire that OSHA personnel can use when speaking with employers who make oral reports. Among the questions such employers will likely be asked are the age of the injured individual and whether he or she was an employee or a contract worker. Employers who have been paying attention to recent developments involving OSHA know that the agency launched an initiative intended to protect temporary workers in 2013, it being the agency's experience that such individuals are often injured (seriously) shortly after being assigned to a new worksite, sometimes due to a lack of training. Employers will likely be asked the age of the affected employee because an injury to an employee a certain age or younger will result in a mandatory inspection; which brings us to the three categories into which all reports will be placed.

Category 1 reports are incidents that must be inspected. They include all fatalities and reports of two or more inpatient hospitalizations; any injury involving an employee younger than 18; an employer with a known history of multiple injuries; repeat offenders; employers on the Severe Violator list; and any report of imminent danger. Frankly, none of these should come as a great surprise to an employer who is familiar with how OSHA operates. Still, it is helpful to know that an employer should absolutely, positively expect a knock on the door if it falls into one of these categories.

Category 2 reports are incidents that may be inspected depending on how the employer responds to certain questions asked during the intake discussion. Although the list of questions set forth in the memorandum is not intended to be exhaustive, multiple "yes" responses will most likely result in an inspection. Among the factors to be considered are whether: (1) the incident resulted from the failure of a safety program; (2) the employee was exposed to a serious hazard; (3) temporary workers were injured or made ill; (4) another governmental agency made the referral; (5) the employer has a prior OSHA inspection history; (6) there is a whistleblower complaint pending; or (7) the employer is a participant in a cooperative program such as VPP or SHARP.

Finally, Category 3 reports will likely involve situations where the majority of responses to the above questions were negative. The applicable Area Office, however, may still launch what OSHA refers to as a Rapid Response Investigation (RRI). Just like the initial intake call, OSHA has prepared a script to be followed during the conversation with an employer when initiating an RRI. As part of the RRI process, OSHA will require a written response and has created what it refers to as a "Non- Mandatory Investigative Tool" which the employer can fill out and return in lieu of sending a letter. Notably, this Tool includes a request for a Root Cause Analysis. Although the sample size at this time is small, many employers prefer to draft their own letter rather than use OSHA's Tool, for obvious reasons.

Proactive employers would be well-served to ensure that their EHS leaders are fully aware of this development and consider training individuals who routinely handle incident reporting and/or interface with OSHA. If you have any questions about this article or workplace safety matters in general, please contact Aaron R. Gelb, Sadina Montani or any other Vedder Price attorney with whom you have worked.

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