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Employers to pay stiffer fines for not reporting severe injuries

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Employers are facing higher penalties for failing to report severe injuries and illnesses under a revised policy issued by the Occupational Safety and Health Administration.

OSHA officials remained concerned about employers failing to report under the agency's revised reporting rule, which went into effect last year and broadened a requirement to inform the agency of certain severe injuries and hospitalizations within 24 hours of management learning of the incidents. In 2015, employers reported 10,388 severe injuries — short of a 12,000-report projection, according to a report published by the agency last month.

Previously, the initial penalty for failing to report was $1,000, but the minimum penalty has increased to $5,000, with local OSHA area directors having discretion to raise that to $7,000 for deterrent purposes, according to a memorandum released in March. The rise in the nonreporting penalties comes ahead of a significantly larger increase in OSHA's civil penalty structure set to take effect by Aug. 1.

“The administration is continuing this agenda of more inspections, higher penalties, as deterrents for violations and this follows suit,” said Matt Thorne, a Washington-based associate with the workplace safety group of Ogletree, Deakins, Nash, Smoak & Stewart P.C. “That's a pretty big jump from $1,000. On top of that is this notion that OSHA is concerned that employers are not reporting, either consciously or unconsciously, to shirk their duties and presumably avoid inspections.”

However, OSHA's increase to the nonreporting penalties is proper considering the serious nature of reportable injuries such as amputations and loss of eye, said Brian Fielkow, a workplace safety expert and president and CEO of logistics company Jetco Delivery in Houston.

“These aren't penalties for a parking ticket,” he said. “These are penalties for a very willful violation. An employer knows or should know the circumstances under which they need to call OSHA. If all you're going to get is a $1,000 penalty, that may just not be enough of a deterrent.”

The agency responded to 62% of the reports filed last year by asking employers to conduct their own incident investigations, known as rapid response investigations. The recent memo stated that if OSHA inspects a worksite previously subject to a rapid response investigation, the agency will not use the employer's internal investigation to cite conditions discovered by the employer during that investigation as long as employees are not exposed to a serious hazard and the employer is taking diligent steps to correct the condition. However, employer representatives expressed doubts about whether OSHA will actually refrain from using this information.

“We're very skeptical about that promise,” Mr. Thorne said, citing OSHA's previous failure to honor its July 2000 policy not to use an employer's voluntary safety and health audit when conducting an inspection — a failure that came to light in litigation over citations the department issued against BP Products North America Inc. and BP-Husky Refining L.L.C. in March 2010. “OSHA made a representation to industry and it went against it and it got caught in court.”