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Work injury reporting rules raise concerns

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Some workplace safety lawyers are discouraging employers from using the Occupational Safety and Health Administration's website to report severe injuries and fatalities in the workplace for fear the information will be used against them.

OSHA's revised reporting requirements that went into effect last year require all workplace fatalities be reported within eight hours and that certain severe injuries be reported within 24 hours of management learning of the incidents.

The agency's reporting website went live in December, giving employers another option to report fatalities and severe injuries other than calling their local OSHA office or the agency's 24-hour hotline.

In its first month, 252 reports were submitted online, according to OSHA. By comparison, the agency received 200 to 250 new reports each week in 2015 when the revised rule went into effect and such reports were only made over the phone.

“It does not matter the method employers use to report injuries or fatalities,” the agency said Feb 16 in a statement. “What is most important to OSHA is that employers meet their obligation to report a fatality within eight hours, and an in-patient hospitalization, amputation or loss of an eye within 24 hours.”

However, Mary Katherine Geraghty, a Boston-based partner at law firm Burns & Levinson L.L.P., cautions employers against using the website because it requires more extensive information than is required when calling OSHA to report such incidents. Employers cannot submit a report without filling out mandatory fields — a particular concern given the short reporting time frames, she said.

“It could be used as an admission (of fault). Once you've made that admission, it's a lot harder to back away from it — even if you found out subsequently to the initial reporting that things were not exactly what you thought at the outset,” Ms. Geraghty said.

Eric Conn, a Washington-based founding partner at Conn Maciel Carey P.L.L.C., also discourages his clients from using the website.

“I don't know a single employer who completes an effective and thoughtful incident investigation in eight hours or 24 hours, so I think it's premature to commit in writing to some version of the incident,” Mr. Conn said. “When you make the phone call, you're not committing in writing to any version. Your own written words are your words, and you're married to them throughout the process.”

OSHA can use the information from the website reports against an employer during a subsequent enforcement action or as a road map for an inspection, and the reports will be accessible to the public under the Freedom of Information Act, which means unions, competitors or plaintiff lawyers can access them, lawyers said.

Mr. Conn noted that if OSHA documents the phone reports with their own written notes, those notes would be subject to FOIA, but if phone calls are not recorded — as is his understanding — there would be no statement of the employer that is subject to FOIA.

The website also has much of the same information that OSHA seeks during rapid response investigations, which it has pledged not to use against employers.

“I'm highly skeptical of that and, even if it is technically true that they won't submit the (rapid response investigation) letter as evidence at a hearing, it's not like they're going to put blinders on and bury their head in the sand,” Mr. Conn said. “There's no question it can come back to hurt you.”

OSHA is still working out the site's bugs, but employers need to meet its reporting requirements because the agency has cited employers who fail to do so, said Edwin Foulke, an Atlanta-based partner at Fisher & Phillips L.L.P.

The website does make it more convenient for employers to report such incidents while giving OSHA the information it is seeking, said Matthew Linton, of counsel at Holland & Hart L.L.P. in Denver.

The reporting rule has broad applicability because all employers under OSHA jurisdiction must report workplace fatalities and serious injuries, even those who are normally exempt from routine OSHA record-keeping because they have 10 or fewer employees or they operate in low-hazard industries, Ms. Geraghty said.

For employers that do report such incidents via OSHA's website, stick to the facts without adding analysis, Mr. Linton said.

“(M)ost people will start to take some responsibility ... That's not something that at that initial stage that you want to do, and that's not something OSHA's asking for. Just put in the facts that you are absolutely sure are the correct facts.”